/// 


iiiiiiiiiiigiiiMiiiiigBi^  .. ..  ..^  r  ^j^^gt^^^ .  J 


Nos.  8587-8588. 
1~^-*-* 9 

IN   THE 


SUPREME   COURT 

OF  THE 

STATE  OF  CALIFORNIA. 


IN  BANK. 


CHARLES  LUX  et  al. 


VS. 


JAMES  B.  HAGGIN  et  al.. 


Opinion  Filed  April  26,  1886. 


STETSON  &  HOUGHTON, 

Plaintiffs'  Attorneys. 

McAllister  &  beegin, 

Of  Counsel. 

LOUIS  T.  HAGGIN, 

Defendant's  Attorney. 
GARBER,  THORNTON  &  BISHOP, 
FLOURNOY  &  MHOON, 
Of  Counsel. 

16  5  1         6 


Cl  L^  ^ 


San  Francisco,  August  9,  t886. 

The  decision  of  the  Supreme  Court  in  Lux  v.  Haggi/i,  although 
filed  four  months  ago,  has  never  been  printed  in  such  form  as  to  se- 
cure its  being  read  by  members  of  the  Bar  even.  Very  few  persons 
have  read  the  opinion,  and  there  is  a  general  misunderstanding  as  to 
just  what  views  the  Supreme  Court  expressed,  in  that  case,  on  the 
important  question  of  riparian  rights. 

The  Governor  of  the  State,  in  a  public  proclamation,  has  mis- 
stated what  was  decided  by  the  Court  in  that  case,  and  we  can  hardly 
expect  that  persons  less  interested  in  the  question  will  do  other  than 
accept  his  statement  as  made  after  a  careful  reading  of  the  opinion 
to   and   a   full  understandmg  of  its  purport,    and  as  giving  a  correct 
^   exposition  of  the  views  expressed  by  the  Supreme  Court. 
>r  To  every  attorney  at  least,  who  has  read  the  lengthy  opinion  in 

g  Lux  V.  Haggin,  it  will  be  ap[)arent  that  Governor  Stoneman  either  did 
^  not  carefully  consider  the  statements  contained  in  the  proclamation 
3=  calling  the  special  session  of  the  Legislature,  or  that  he  had  not  read 
^  the  opinion  in  that  case. 

"^  As  the  opinion  will   not  appear  in   a  regular  report  for  some 

months  at  least,  we  have  had  it  printed  in  such  form  that  it  may  be 
read  by  any  one  who  is  interested  in  the  important  questions  consid- 
ered and  decided  in  the  case. 

STETSON  &  HOUGHTON. 


aiiiM)*) 


INDEX. 


I. 

Page. 

As  tJie  case  loas  presented  in  the  Court  heloiu  the  plaintiffs  were 
not  estopped  from  seeking  relief  by  injunction,  by  reason  of 
their  laches  or  delay 3 


II. 

The  plaintiffs  are  not  estopped  from  maintaining  this  action 
by  reason  of  their  assent  to  and  approval  of  certain  acts  of 
a  third  person — Tlie  Kern  Valley  Water  Company 20 

III. 

While  the  argument  ab  inconvenienti  should  have  its  proper 
weight  in  ascertaining  what  the  laiu  is,  there  is  no  "Public 
Policy  "  ivhioh  can  empower  the  Courts  to  disregard  the 
law;  or  because  of  an  asserted  benefit  to  many  persons  (in 
itself  doubtful)  to  overthroio  the  settled  laiv.  This  Court 
has  no  power  to  legislate;  especially  none  to  legislate  in  such 
manner  as  to  deprive  citizens  of  their  vested  rights. 

The  riparian  doners  property  in  the  ivater  of  a  stream 
may  (on  payment  of  due  compensation  to  him)  be  taken  to 
supply  "farming  neighborhoods  "  loith  water. 

In  case  further  legislation  shall  be  deemed  expedient  for 
the  distribution  of  water  to  public  uses  (the  private  right 
being  paid  for)  the  validity  of  such  further  legislation  is  to 
be  determined  after  its  enactment,  if  its  validity  shall  then 
be  questioned 29 


11 


IV, 


By  the  law  of  3Iexico  the  running  loaters  of  California  luere 
not  dedicated  to  the  common  use  of  all  the  inhabitants,  in 
such  sense  that  they  could  not  be  deprived  of  the  common 
use 


Page. 


39 


V. 

Upon  the  admission  of  California  into  the  Union,  this  State  be- 
came vested  with  all  the  rights,  sovereignty  and  jurisdiction 
in  and  over  navigable  loaters,  and  the  soils  under  them, 
lohich  were  possessed  by  the  original  States  after  the  adoption 
of  the  Constitution  of  the  United  States. 

Since  the  admission  of  California  into  the  Union,  the 
public  lands  of  the  United  States  (except  such  as  have  been  re- 
served or  purchased  for  /o7is,  navy  yards,  public  buildings, 
etc.),  are  held  as  are  the  lands  of  private  persons,  except 
that  they  cannot  be  taxed  by  the  State,  nor  can  the  primary 
disposition  of  them  be  inteifered  ivith 56 

Since,  if  not  before  the  admission  of  California  into  the  Union, 
the  United  States  has  been  the  oioner  of  all  innavigable 
streams  on  the  public  lands  of  the  United  States,  luithin  our 
borders,  and  of  their  banks  and  beds. 

A  grant  of  j^ublic  land  of  the  United  States  carries  with 
it  the  common-law  rights  to  an  innavigable  stream  thereon, 
unless  the  waters  are  expressly  or  impliedly  reserved  by  the 
terms  of  the  patent,  or  of  the  statute  granting  the  land,  or 
unless  they  are  reserved  by  the  congressional  legislation  au- 
thorizing the  patent  or  other  muniment  of  title 57 


rii. 

The  State  of  California  became  the  oiuner  of  the  swamp  lands, 
described  in  the  complaint  herein,  on  the  28^A  day  of  Sep- 
tember, 1850 60 


Ill 


VIII. 


It  has  never  deen  held  by  the  Siqweme  Court  of  the  United  States, 
or  by  the  Supreme  Court  of  this  State,  that  an  appropria- 
tion of  loater  on  the  p)uhlic  lands  of  the  United  States  (made 
after  the  Act  of  Congress  of  July  26,  1866,  or  the  Amenda- 
tory Act  of  1870)  gave  to  the  appropriator  the  right  to  the 
water  appropriated  as  against  a  grantee  of  riparian  lands, 
under  a  grant  made  m^  issued  prior  to  the  Act  of  \^QQ; 
except  in  a  case  luhere  the  luater  so  subsequently  appropriated 
ivas  reserved  by  the  terms  of  such  grant 63 


IX. 

The  rights  of  the  Stcde  under  the  grant  of  September  28,  1850, 
do  not  depend  upon,  nor  are  they  limited  by  the  decisions  of 
the  State  courts  ivith  respect  to  controversies  upon  the  public 
lands  of  the  United  States.  Those  decisions  do  not  enter 
into  nor  operate  upon  the  subsequent  legislation  of  Con- 
gress, in  such  manner  as  to  require  that  the  legislation  (or 
its  affirmance  of  rights  recognized  by  the  State  courts  as  ex- 
isting betioeen  occupants  upon  the  public  lands  of  the  United 
States)  must  be  construed  as  an  attempt  to  deprive  the 
State  of  its  vested  rights. 

If  the  decisions  mentioned  can  be  referred  to  for  any  pur- 
pose, semble :  That  the  occupant  of  a  tract  of  riparian 
land  (arable  or  grazing)  on  the  public  domain  is  by  such 
decisions  presumed  to  have  received  a  grant  of  the  floiving 
tvater,  to  the  extent  of  the  common-laio  right  to  the  use  of 
such  loater  as  itfloivs  through  the  land. 

And  if  the  doctrine  as  to  adverse  claims  upon  the  public 
lands  as  declared  by  these  decisions  be  extended  to  lands 
granted  to  the  Stcde,  it  cannot  effect  the  title  or  estate  of 
grantees  of  the  State  (the  tvater  not  being  reserved  in  the 
grants  or  in  the  legislation  authorizing  the  grant).  The 
doctrine  is  applicable  alone  to  actions  in  lohich  both  parties 
claim  only  by  possession 67 


IV 

X. 

Page. 

TJie  common  laiv  as  to  the  riparian  rir/his  was  not  ahrogated  by 
certain  statutes  of  the  State,  applicable  to  a  district  of  coun- 
try ivithin  ivhich  is  included  the  County  of  Kern;  nor  was 
the  State  estopped  by  such  statutes  from  asserting  its  right 
to  the  flow  of  a  natural  stream,  from  that  district,  to  and 
over  the  lands  granted  to  the  State  by  the  Act  of  Congress 
of  1850 76 

XI, 

Section  1,422  of  the  Civil  Code  {^^Tlie  rights  of  riparian 
proprietors  art  not  afftcted  by  the  provisions  of  this  title'')  is 
protective,  not  only  of  riparian  rights  existing  lohen  the 
Code  ivas  adopted,  bid  also  of  the  riparian  rights  of  those 
who  acquired  a  title  to  land  from  the  State,  after  the  adop- 
tion  of  the  Code  and  before  an  appropriation  of  tvater  in 
accordance  loith  the  Code  provisions. 

Neither  a  grantee  of  the  United  States  nor  the  grantee  of 
a  private  person,  luho  ivas  a  riparian  owner  when  the  Code 
loas  adopted,  need  rely  for  protection  on  Section  1,422. 
Such  persons  are  protected  by  constitutional  principles. 

The  State  might  have  reserved  from  her  grants  of  land  the 
tvaters  foiuing  through  them,  for  the  benefit  of  those  ivho 
should  subsequently  appropriate  the  waters.  But  the  State 
has  not  made  such  reservation. 

The  water  rights  of  the  State,  as  riparian  owner,  are  not 
reserved  to  the  State  by  Section  1,422,  because  (ivhe^-ever  the 
State  has  not  already  j^arted  ivith  its  right  to  those  who  have 
acquired  from  her  a  legal  or  equitable  title  to  riparian 
lands)  the  py^'o  visions  of  the  Code  confer  the  State  rights 
to  the  fLoiv  on  those  approp)riating  ivater  in  the  manner 
prescribed  by  the  Code 82 

XII, 

Tlie  statute  of  April  l^th,  1850,  adopts  the  common  law  of  Eng- 
land, not  the  civil  law,  nor  the  *'  ancient  common  law  "  of 
the  civilians,  nor  the  Mexican  law. 


.    .  Page. 

In  ascertaining  the  common  law  of  England  we  may  and 

slioidd  examine  and  iveigh  the  reasoning  of  the  decisions, 
not  only  of  the  English  courts,  but  also  of  the  courts  of  the 
United  States  and  of  the  several  States,  down  to  the  prtseid 
time.  We  are  not  limited  to  the  consideration  of  the  Eng- 
lish decisions  rendered  'prior  to  July  4,  1776. 

The  possessory  rights  of  occupants  of  portions  of  the 
public  lands,  or  of  waters  thereon  {recognized  by  the  Cali- 
fornia courts)  are  protected  by  the  common  law 91 

XIII, 

21ie  doctrine  of  "appropriation,''^  so  called,  is  not  the  doctrine  of 

the  common  law ....       97 

XIV. 

Riparian  Eights.  By  the  common  law  the  right  of  the  riparian 
proprietor  to  the  flow  of  the  stream  is  inseparably  annexed 
to  the  soil,  and  passes  with  it,  not  cts  an  easement  or  appur- 
tenance, but  as  part  and  parcel  of  it.  Use  does  not  create 
the  right,  and  disuse  cannot  destroy  or  suspend  it.  The 
right  in  each  extends  to  the  natural  and  usual  fiow  of  all 
the  ivater,  unless  where  the  quantity  has  been  diminished  a^ 
a  consequence  of  the  reasonable  application  of  it  by  other 
riparian  owners,  for  purposes  hereafter  to  be  mentioned. . .       99 

XV. 

By  our  law  the  riparian  proprietors  are  entitled  to  a  reasonable 
use  of  the  ivater  s  of  the  stream  for  the  purpose  of  irrigation. 
What  is  such  reasonable  use  is  a  question  of  fact,  and  de- 
pends upon  the  circumstances  appearing  in  each  particular 
case. 102 

XVI. 

On  behalf  of  the  defendant  certain  witnesses  gave  testimony 
tending  to  prove  that,  after  the  commencement  of  the  action 
and  issue  joined,  and  daring  the  trial  of  this  action,  there 


VI 

Page. 


was  no  tvatercourse  as  claimed  and  no  channel  through 
which  ivater  could  have  flowed.  The  Court  aired  in  reject- 
ing evidence  offered  by  the  plaintiffs^  in  reply,  tending  to 
prove  that  after  tJie  dates  mentioned  by  said  loitnesses  for  de- 
foidant  there  teas  a  watercourse  and  channel 114 

XVII, 

The  Court  below  erred  in  rejecting  all  or  some  of  the  certificaies 

of  purchase  offered  by  the  plaintiffs  in  reply 123 


In    the    Supreme    Court 

OF   THK 

STATE    OF   CALIFORjYIA. 

IN    BANK 


[Filed  April  26,  1886.] 


CHAELES  LUX  and  OTHERS 

vs.  V  Nos.  8587-8588 

JAMES  B.  HAGGIN  and  OTHERS. 


_/ 


The  question  being — Can  a  private  corporation  divert  the 
waters  of  a  watercourse  and  tliereby  deprive  the  riparian 
proprietors  of  all  use  of  the  same,  without  compensation, 
made  or  teadered,  to  such  proprietors,  Held : 

1.  The  owners  of  land  by  or  through  which 
a  watercourse  naturally  and  usually  flows  have 
a  Tight  of  property  in  the  waters  of  the  stream. 

2.  This  property  may  be  taken  for  a  public 
USE,  just  compensation  being  first  made,  or  paid 
into  Court. 


Water  to  supply  ^^ farming  neighborhoods  "  is 
a  public  use.  And  it  is  for  the  Legislature  to 
determine  whether,  in  the  exercise  of  the  power 
of  eminent  domain,  it  is  necessary  or  expedient 
to  provide  further  legal  machinery  for  the  ap- 
propriation (on  due  compensation)  of  private 
rights  to  the  flow  of  running  streams  and  the 
distribution  of  waters  thereof  to  public  uses. 

3.  But  one  private  person  cannot  take  Ids 
property  from  another,  either  for  the  use  of  the 
taker  or  for  an  alleged  public  use,  without  any 
compensation  paid  or  tendered.  (Constitution, 
Art.  I,  Sec.  U). 

4  Riparian  owner  sniay  reasonably  use  water 
of  the  stream  for  purposes  of  irrigation. 

5.  The  Court  below  erred  in  rejecting  certain 
evidence  offered  by  the  appellants. 

This  action  was  commeuced  by  Charles  Lux,  Henry  Miller, 
James  C.  Crocker  and  others,  as  plaintiffs,  against  James  B. 
Haggin  and  many  individuals  and  corporations,  as  de- 
fendants. By  dismissals  and  amendments  Lux,  Miller  and 
Crocker  became  the  onl}'  plaintiffs,  and  the  Kern  Kiver 
Land  and  Canal  Company  the  solo  defendant.  Since  the 
amended  complaint  was  filed,  the  suit  has  been  prosecuted 
to  obtain  a  decree  enjoining  the  defendant,  the  Kern  River 
Land  and  Canal  Company,  from  diverting  waters  of  Kern 
River,  which,  it  is  alleged,  had  flowed  down  a  watercourse 
known  as  Buena  Vista  Slough,  through  lands  of  the  plaintiffs 
described  in  the  com[)laint,  and  Avhich  (if  not  diverted) 
would  have  continued  so  to  flow.  Plaintiffs  have  appealed 
from  a  judgment  in  favor  of  the  defendant  and  from  an 
order  denjing  a  new  trial. 

Before  proceeding  to  decide  what  are  the  respective  rights 
of  riparian  proprietors  and  appropriators  of  water,   or    to 


inquire  into  certain  alleged  errors  of  the  Court  in  rejecting 
evidence  offered  by  the  plaintiffs  at  the  trial  below,  we 
propose  to  consider  points  made  by  respondent  which,  if 
well  taken,  demanded  an  affirmance  of  the  judgment,  even 
though  the  "common  law"  as  to  riparian  rights  now  prevails, 
or  formerly  prevailed,  in  this  State. 

I. 

As  the  case  was  presented  in  the  Court  below  the  pkdntiffs  luere 
not  estopped  from  seeking  relief  hy  injunction,  by  reason  of 
their  laches  or  delay. 

Asa  conclusion  of  law  from  certain  facts  found  the  Court 
below  declared  "that  the  plaintifi's  have  been  guilty  of  such 
laches  and  neglect  as  disentitle  them  to  any  relief  in  this 
action."  And  it  is  insisted  in  this  Court,  by  counsel  for 
respondent,  "that  plaintiffs  have  been  guilty  of  such  laches 
as  disentitles  them  to  any  relief  in  equity." 

First — They  are  estoppels  in  pais,  as  where  a  defendant  is 
induced  to  act  by  the  declarations  or  conduct  of  a  plaintiff 
— which  are  a  defense  both  at  law  and  equity.  Here  we 
cannot  discover  the  elements  of  such  an  estoppel.  The  de- 
fendant has  acted  with  full  knowledge  of  all  the  facts,  and, 
as  must  be  presumed,  with  full  knowledge  of  the  law  con- 
trolling the  rights  of  the  parties.  To  constitute  the  estoppel 
the  party  claiming  the  benefit  of  it  must  be  destitute  of 
knowledge  of  his  own  legal  rights  and  of  the  means  of 
acquiring  such  knowledge.  {Biddle  Boggs\.  3Ierced,  14Cal., 
279;  Stockman  v.  Riverside,  64  Id.,  57;  3IorriUy.  St.  Anthony 
Falls,  26  Minn.,  229.)  To  constitute  such  an  estoppel  it 
must  also  be  shown,  that  the  person  sought  to  be  estopped 
has  made  an  admission  or  done  an  act,  ivith  the  intention  of 
influencing  the  conduct  of  another,  or  that  he  had  reason 
to  believe  would  influence  his  conduct,  inconsistent  with 
the  evidence  he  proposes  to  give,  or  the  title  he  proposes  to 
setup;  that  the  other  party  has  acted  upon  or  been  in- 
fluenced by  such  act  or  declaration;  that  the  party  so  in- 
fluenced will  be  prejudiced  by  allowing  the  truth  of  the  ad- 
mission to  be  disproved.  {Brown  v.  Bowen,  30  N.  Y.,  519; 
Plumb  V.  Cattaraugus,  18Id. ,  392.)  In  the  case  before  us 
the  fact  relied  on  as  proving  the  estoppel  is  that  plaintiffs 
had  knowledge  of  the  expensive  canals  and  other  works  of 
defendant,  while  they  were  in  progress,  and  did  not  object 
to  them.     The  bare  fact  that  ditches,  etc.,  weie  constructed 


with  the  knowledge  of  the  plaintiffs,  though  at  great  ex- 
pense, without  objection  by  phiintitfs  is  not  snfficient  to 
constitute  (such)  an  estoppel.   (^Sfockmcoi  v.  Biverside,  supra.) 

Second — Where  an  express  statute  of  limitations  applies 
to  a  suit  in  equity  mere  delay  to  commence  the  suit  for  a 
pei'iod  less  than  that  of  the  statute  of  limitations,  is  never  a 
reason  for  dismissing  the  proceeding. 

And  when  the  defendant  relies  on  mere  delay  and  his  own 
adverse  use,  the  statutory  period  having  expired,  he  must 
plead  the  statute.  A  ]^arty  claiming  the  right  to  use  water 
by  adverse  possession  for  the  statutory  time,  must  set  up 
the  same  as  a  defense  in  his  answer.  {American  Co.  v.  Brad- 
ford, 27  Cal.,  360.) 

Appellants  contend  that  they  had  five  years  after  their 
cause  of  action  accrued  within  which  to  bring  this  action. 
It  may  be  conceded,  however,  for  all  the  purposes  of  this 
case,  that  the  Code  of  Civil  Procedure  limited  them  to  four 
years. 

It  has  been  repeatedly  decided  in  this  State  that  Section 
343  of  the  Code  of  Civil  Procedure  ("An  action  for  relief 
not  hereinbefore  provided  for  must  be  commenced  within 
four  3'ears  after  the  cause  of  action  shall  have  accrued  ") 
applies  as  well  to  suits  in  equity  as  to  actions  at  law.  The 
same  effects,  positive  and  negative,  follow  from  Section  343 
as  from  other  sections  of  the  Code  prescribing  the  periods 
within  Avhich  actions  may  and  must  be  commenced.  With 
reference  to  other  limitations  a  party  cannot  be  refused  a 
hearing  if  he  shall  bring  his  action  within  the  period  named; 
and  as  to  suits  to  which  Section  343  is  applicable,  mere 
lapse  of  time,  less  than  four  years,  is  not  ground  for  de- 
fence. Throughout  the  Code  suits  in  equity  are  called 
"  actions."  Sections  34r)  and  347  expressly  relate  to  certain 
snits  in  equity.  Section  307  declares  "  there  is  but  one 
form  of  civil  action,"  etc.  That  section  does  not  abolish 
the  distinction  recognized  by  the  Constitution  between  law 
and  equity,  but  it  indicates  the  legislative  intent  that  the 
subsequent  ])rovisions  of  the  Code  sliould  be  applicable  to 
legal  and  eqnital)lc  proceedings.  The  word  "hereinbefore," 
in  Section  343,  has  never  been  held  to  limit  its  operation  to 
actions  at  law,  but  it  has  often  been  held  to  the  contrary. 

Third — It  is  said  that  when  a  court  of  equity  is  asked  to 
exercise  its  jurisdiction,  by  means  of  injunction,  it  will 
decline  to  intervene,  when  there  has  been  laches,  although 
the  statutory  period  of  limitation  has  not  expired. 


It  would  seem  that  the  discretion  of  a  court  of  equity  in 
dismissing  suits  for  unreasonable  delay  (in  view  of  the  facts 
appearing  in  each  particular  suit)  was  originally  exercised, 
and  has  generally  been  employed,  where  there  is  no  statute 
of  limitations  directly  applicable;  or  where  the  statute  has 
been  held  generally  applicable  by  analogy — courts  of  equity 
reserving  the  power  to  recognize  exceptions  to  the  general 
rule.  And  in  exercising  its  prudent  discretion  in  the  last 
class  of  cases,  the  court,  as  the  equities  demanded,  Avould 
sometimes  dismiss  a  bill  before  the  corresponding  period  at 
law  had  run,  and  sometimes  entertain  a  cause  long  after  the 
running  of  the  time  prescribed  in  the  statute.  Thus  the 
power  to  entertain  or  to  refuse  to  entertain  a  cause  was  said 
to  be  exercised  "independent  of  any  statute  of  limitations." 

Mr.  Wood  in  his  work  on  Limitations,  remarks:  "It  is 
generally  held  by  our  couris  that,  except  in  the  single  case 
of  concurrent  jurisdiction"  (where  the  statute,  like  a  statute 
in  terms  relating  to  suits  in  equity,  operates  ex  vicjore  siio) 
"courts  of  equity  may  act  by  analogy  or  not  as  the  ends  of 
justice  and  the  strict  equity  of  the  case  may  require. "  (See. 
59.)  It  was  said  by  Lord  Camden:  "From  the  beginning 
there  lias  always  been  a  limitation  to  suits  in  this  couit. 
■^  *  *  But  .IS  the  Court  has  no  legislative 
authority  it  could  not  properly  define  the  time  of  bar,  by  a 
positive  rule,  to  an  hour,  a  minute,  or  a  year.  It  was 
governed  by  circumstances. "  Sir  Thomas  Plummer  spoke 
thus  of  courts  of  equity:  "  They  have  refused  relief  to  stale 
demands  even  when  no  statutory  limitation  existed,"  etc. 
(Cholmondeley\.  Clinton,  2  Jac.  and  Walk.,  141.)  It  is  said 
by  Mr.  Daniell:  "  When  there  is  no  positive  limitation  the 
question  whether  the  Court  will  interfere  or  not  depends 
upon  whether,  from  the  facts  of  the  case,  the  Court  will 
infer  acquiescence,  confirmation  or  release."  (1  Ch.  Pr., 
560-61.)  And  Judge  Story  says  that,  in  cases  where  equity 
adopts  the  statutory  rule  by  analogy,  it  will  often  treat  the 
lapse  of  a  less  period  as  a  presumptive  bar,  on  the  ground 
of  discouraging  stale  claims,  or  gross  laches,  or  unexplained 
acquiescence.  (Eq.  Jur.,  1920.)  The  writer  "  On  Limita- 
tions" already  quoted,  says  that  where  the  claim  is  purely 
equitable  and  there  is  no  express  statute  barring  it,  the 
rights  of  the  party  will  be  enforced  without  reference  to  any 
statute.     (Wood,  Sec.  59.) 

It  might  be  claimed  on  principle  that,  inasmuch  as  the 
conduct  of  equity,  with  respect  to  laches,  etc.,  and  the  stat- 
ute of  limitations,  are  both  based  on  public  policy  designed 
to  discourage  stale  demands  and  to  protect  against  possible 


loss  of  evidence,  when  the  Legislature — the  peculiar  expon- 
ent of  the  policy  of  the  Stute — has  spoken  (by  adopting  a 
positive  rule  of  limitation  expressly  to  suits  in  equity,  in 
which  lapse  of  time  alone  is  the  controlling  condition)  the 
limitations  applied  by  equity,  to  cases  not  previously  within 
the  statute,  should  be  regarded  as  no  longer  existing  or  en- 
forceable. 

It  must  be  conceded,  however,  that  the  weight  of  authority 
is  to  the  effect  that,  where  the  statute  of  limitations  is  di- 
rectly applicable  to  a  suit  in  equity,  a  court  of  chancery 
may  properly  refuse  to  grant  relief  by  injunction,  when  the 
plaintiff' has  assented  to  the  acts  complained  of  and  their 
consequences;  and  that  such  assent  may,  in  proper  cases, 
be  inferred  from  the  plaintiff's  acquiesceiice  with  full  knowl- 
edge of  all  the  facts.  Further,  the  acquiescence,  proving 
assent,  may  bar  relief  in  equity,  although  it  may  not  be  ac- 
companied by  all  the  circumstances  which  would  make'it  an 
estoppel  at  law. 

Each  of  the  words  "delay,"  "laches"  and  "acquiescence" 
has  its  appropriate  meaning.  Laches  would  strictly  seem  to 
imply  neglect  to  do  that  which  ought  to  have  been  done;  ac- 
quiescence a  resting  satisfied  with  or  submission  to  an  ex- 
isting state  of  things.  Laches  (at  least  with  other  facts) 
may  be  evidence  of  acquiescence,  and  acquiescence  may  be 
evidence  of  consent.  In  the  decisions  of  the  reported  cases, 
however,  "laches"  has  sometimes  been  employed  as  the 
equivalent  of  mere  delay,  and  sometimes  "laches"  or 
"  gross  laches"  as  the  equivalent  of  "  acquiescence."  It  is, 
therefore,  important  to  consider  the  context,  in  connection 
with  which  either  of  these  expressions  has  been  used  by  a 
Judge,  in  order  to  ascertain  in  what  sense  it  is  employed. 

Speaking  of  the  distinction  between  laches  and  acquies- 
cence, Wood  remarks:  "  While  the  words  'laches'  and  '  ac- 
quiescence'  are  often  used  as  similar  in  meaning,  the  dis- 
tinction in  their  import  is  both  great  and  important.  Laches 
import  a  merely  passive,  while  acquiescence  implies  active 
assent;  and  while,  when  there  is  no  statutory  limitation  ap- 
plicable to  the  case,  courts  of  equity  would  discourage 
laches,  and  refuse  relief  after  great  and  unexplained  delay, 
yet,  Avhen  there  is  such  a  statutory  limitation,  they  will  not 
anticipate  it,  as  the//  imiji  when  acquiescence  has  exlste  I. 
Laches,  in  fact,  amount  only  to  that  inferfor  species  of  ac- 
quiescence described  in  the  following  terms  by  Lord  Kindess- 
ley — in  Rochdale  v.  Kinrj,  2  Simon,  N.  S.  89 — '  mere  ac- 
quiescence (if  by  acquiescence  is  to  be  understood  only  ab- 
staining from  legal  proceedings)  is  unimportant;  where  one 


party  invades  the  right  of  another,  tliat  other  does  not  in 
general  deprive  himself  of  the  right  of  seeking  redress 
luerel}^  because  he  remains  passive,  unless  indeed  he  con- 
tinues inactive  so  long  as  to  bring  the  case  within  the  pur- 
view  of  the  statute  of  limitations.'"     (On  Lim.,  Sec.  62.) 

In  cases  of  concurrent  jurisdiction,  or  where  the  statute 
is  express,  equity  will  sometimes  refuse  relief  before  the 
statute  has  run.  "But,"  says  the  same  writer,  "this  is 
only  in  rare  and  exceptional  cases  where  the  party  can  be 
said  to  have  aajuiesceci  in  the  wrong  of  which  he  complains" 
(Sec.  59),  and  the  same  is  said  in  effect  in  Beed  v.  West, 
47  Texas,  240. 

It  may  fairly  be  deduced  from  the  authorities  we  have 
consulted  that  the  acquiescence,  which  will  bar  a  complain- 
ant from  the  exercise  in  his  favor  of  the  discretionary 
jurisdiction  by  injunction,  must  be  such  as  proves  his  as- 
sent to  the  acts  of  tlie  defendant,  and  to  the  injuries  to  him- 
self which  hive  flowed  or  can  reasonably  be  anticipated  to 
flow,  from  those  acts. 

If  a  degree  of  acquiescence  less  than  establishes  such 
assent  has  been  regarded,  in  any  decision,  it  will  be  seen 
that  it  has  been  treated  merely  as  tending  to  prove  some 
oJher  fact  which  rendered  it  inequitable  to  grant  a  prevent- 
ive order. 

We  have  tried  to  look  at  all  the  vast  number  of  books  re- 
ferred to  by  counsel,  and  have  not  found  any  asserted 
doctrine  which  directly  conflicts  with  what  has  just  been 
said. 

The  granting  or  refusing  a  decree  of  specific  performance 
of  contracts  for  the  purchase  of  lands — when  there  has 
been  more  or  less  delay —  depends  on  principles  somewhat 
different,  f Green  v.  Covilland,  10  Cal.,  317;  Delevan  v. 
DiDican,  49  N.  Y.,  485.)  When  the  purchaser  has  not  com- 
plied wi;h  his  contract,  he  must  show^  why.  He  must  ac- 
count for  his  failure  in  a  reasonable  manner;  must  make 
out  a  cle  ir  case,  and  show  that  the  relief  he  asks  is  equit- 
able. He  comes  into  court  with  an  admission  that  he  has 
not  done  all  he  agreed  to  do.  (Frinh  v.  Parker,  49  N.  T., 
1.  See  also  Kirby  v.  Jacobs,  13  B.  Mon.,  435  ;  JVebber 
V.  Marshall,  19  Cal.,  447.)  Nor  will  equity  decree  specific 
performance  of  a  contract  when  its  terms  and  conditions 
are^^uucertain  or  indefinite.  (Harnett  v.  Yielding,  2  Sch. 
&  Le  Froy,  552.) 

In  Person  v.  Sanger  (Davies'  C.  C,  264)  Ware,  District 
Judge,  held  that  the  plaintiif  was  too  late  in  seeking  dam- 
ages in  equity  for  an  alleged  fraud  in  the  sale  of  land . 


8 

Some  of  the  cases  cited  relate  to  applications  for  a  "  pre- 
liminary "  injunction,  where,  the  equities  being  doubtful, 
the  preliminary  order  was  denied.  (Societ//  v.  Hdlsman,  1 
Halst.,  126;  Attorney  General  v.  Sheifield,  3  De  Gex,  M.  k 
G.,  304:.)  In  the  last  case  Sir  Knight  Bruce  observed 
"  what  is  now  done  is  not  to  be  considered  as  deciding 
what  will  be  done  at  the  hearing  of  this  cause,  when  pos- 
sibly an  injunction  may  be  granted."  xA.ud  the  Lord  Chan- 
cellor, Cranworih,  added — he  was  not  prepared  to  say  it 
would  be  discreet  for  the  Court  to  interfere  "  interlocutor- 
ily  ''  before  the  fact  had  been  established  one  way  or  the 
other,  by  atrial.  Afterward,  when  the  application  came  be- 
fore the  Chancellor  he  denied  it  on  the  ground  that  the 
plaintiff  would  be  subjected  to  no  serious  injury  by  reason 
of  the  temporary  obstruction  of  a  street  by  a  gas  company. 
And  so  in  Great  Western  v.  Tlie  Oxford  (3  De  Gex,  M.  &  G. 
341),  Sir  Knight  Brace  commences  by  saying — "It  is  not 
now  to  be  determined  what  order  or  decree  it  will  be  proper 
to  mak  )  if  these  cases  shall  be  before  the  court  forbearing. 
We  arc  now  dealing  with  interlocutory  motions  only." 

A  learned  writer  on  injunction  says:  "While  delay  may 
not  amount  to  acquiescence  in  the  wrong  for  which  com- 
plainant seeks  redress,  it  may  yet  suffice  to  prevent  his  ob- 
taining relief  by  injunction."  (High,  Sec.  7.)  In  support 
of  this  view  he  refers  to  the  Attorney  General  v.  She^dd, 
supra,  and  to  Dnlin  v.  Caldwell  (28  Ga.,  47.)  But  the  Geor- 
gia case  was  an  attempt  to  enjoin  referees  from  making  an 
award,  on  the  ground  that  the  plaintitif  (plaintiff  also  in  the 
cause  referred)  had  been  defrauded  by  reason  of  the  fact 
that  the  adverse  party,  in  the  cause  before  the  referees,  had 
not  fully  answered.  The  Chancellor  said  the  plaintiff  ought 
to  have  made  himself  acquainted  with  the  contents  of  the 
answers,  and  ought  to  have  excepted  to  them  if  insufficient. 
He  had  had  his  day  in  court. 

Wood  V.  SutcUffe  (2  Sim.,  N.  S.,  163),  was  a  suit  by  a  man- 
ufacturer to  enjoin  the  owner  of  dyeing  Avorks  above  from 
fouling  the  water.  The  j)l.nntiff  had  stood  by  for  nearly 
five  years  wliile  the  defendant  was  constructing  and  using 
his  works.  Before  defendant  commenced  to  turn  his  dye- 
stuffs  into  the  stream  the  sewage  of  a  dense  popul  ition  had 
rendered  the  water  unfit  for  plaintiff's  purposes,  who  had  in 
fact  ceased  to  use  it.  The  fouling  of  the  water  was  an  inci- 
dent to  the  occupation  of  the  large  population,  of  which 
(said  the  Chancellor)  the  plaintiff"  could  not  conjplain.  He 
therefore  suffered  no  injury  from  the  acts  of  the  defendant, 
and  by  his  long  acquiescence  had  assented  to  them. 


9 

One  cannot  read  the  case  of  W/jcky.  Hunt,  (Johnson  372,) 
without  perceiving  that  it  did  not  turn  on  mere  delay,  or 
imperfect  acquiescence.  The  complainant  had  a  complete 
remedy  at  l.iw,  and  the  Court  said  the  English  chancery  in- 
terfered, notwithstanding  the  existence  of  a  plain  legal  rem- 
edy, o)df/  "by  granting  an  injunction  to  prevent  irreparable 
damage  before  a  trial,  or  on  a  bill  of  peace  after  one  or  more 
trials  at  law."  Then  there  were  grave  doubts  whether  the 
plaintiti' had  suffered  any  injury;  and  Wood,  V.  C.  said: 
"Under  these  circumstances  it  is  impossible  to  interfere  un- 
til the  right  has  been  tried,  whatever  the  mode  of  trying  it 
may  be."  And  the  Judge  said:  "If  there  was  no  injury  (as 
was  contended)  from  such  floods  as  occnrred  during  the  two 
and  a  half  years  of  the  plaintiff's  delay,  a  serious  question 
might  arise  on  the  merits  how  far  the  possibility  of  an  injury 
once  in  twenty  or  thirty  years  would  justify  the  Court  in  in- 
terfering with  defendant's  works." 

Equitable  relief  in  many  cases  depends  upon  the  discre- 
tion of  the  Chancellor,  and  it  is  true,  as  said  by  Bispham, 
that  the  laches  of  the  complainant  is  often  "one  of  the  most 
important  elements"  which  is  taken  into  consideration.  But 
laches — in  the  sense  of  delay  only — is  not  important,  except 
as  it  constitutes  with  other  circumstances  evidence  of  ac- 
quiescence. 3Ieredith  v.  Sayre  (32  N.  J.  Eq. ,  557)  was  not 
decided  upon  mere  delay  or  laches  in  the  sense  of  delay. 
The  complainants  w.iited  for  a  year  after  a  tramway'  was  com- 
pleted on  a  street  in  front  of  their  lots,  and  this  fact  was  in 
view  of  the  circumstances  treated  as  evidence  of  acquies- 
cence. The  Court  said:  "The  proj)erty  is  in  an  unimproved 
part  of  the  city.  No  inconvenience  of  any  account  is  inflicted 
on  the  plaintiffs  by  the  obstruction,"  etc. 

In  the  two  cases  last  cited,  as  in  Wood  v.  Sidcliffe,  supra, 
and  other  cases,  it  will  appear  on  examination  that  the  fact 
that  the  plaintiff'  had  suffered  and  would  probably  suffer  but 
slight  injury',  as  compared  with  that  to  which  the  defendant 
would  be  subjected  if  the  injunction  was  granted  (or  the  fact 
that  it  remained  doubtful  wdiether  the  plaintiff' would  suffer 
injury  of  any  account),  was  considered — with  the  delay — in 
reaching  the  conclusion  that  acquiescence  was  proved.  It  is 
perhaps  more  probable  that  one  will  assent  to  a  slight  or 
temporary  than  to  a  grave,  serious  and  permanent  injury. 

In  C.  and  0.  R.  v.  Bohhit  (5  W.  V.,  138)  a  bill  to  enjoin  a 
diversion  of  waters  was  held  to  be  insufficient  because  it 
neither  alleged  the  insolvenc}'  of  the  defendant,  nor  set  forth 
facts  showing  that  a  judgment  for  damages  would  not  be  am- 
ple redress;  and  in  Huff  v.  Doylston  (-1  Brewster,   333)  it  is 


10 

said  that  iujuuction  will  not  issue  "if  the  injury  be  doubt- 
ful, eveutful  or  contingent." 

Varneij  v.  Pope  (60  Maine,  192),  decides  that  injunction 
to  restrain  a  nuisance  cannot  be  resorted  to,  unless  the  right 
of  the  complainant  has  been  settled  at  law,  or  long  enjoyed, 
or  the  defendant's  acts  will  result  in  irreparable  injury, 
HeisMl  V.  Gross  {1  Phihi.,  317),  that  equity  will  not  relieve 
by  injunction,  where  the  right  is  disputed,  until  a  trial  at 
law,  unless  the  injury  is  irreparable,  and  the  necessity  ur- 
gent, and  there  is  no  adequate  remedy  at  law.  Creu//i(on  v. 
Evans  (53  Cal.,  551,  was  an  action  at  law  to  recover  damages 
for  a  diversion.  The  plaintifi'  was  a  riparian  proprietor, 
and,  as  the  defendant  was  not,  the  Court  held  that  in  the 
absence  of  proof  of  damages,  the  ])laintiff  was  entitled  to  a 
verdict  for  nominal  damages.  In  B'^iseij  v.  Gallwjlier  (20 
Wall.,  267),  no  question  was  involved  as  to  delay,  laches  or 
acquiescence.  Nor  was  there  such  a  question  in  Atchison  v. 
Patterson  (Id.,  507),  which  was  an  issue  as  between  appro- 
priators  on  the  public  lands.  The  Supreme  Court  of  the 
United  States  there  said,  "whether  a  court  of  equity  will 
interfere  by  injunction  will  depend  upon  the  extent  and 
character  of  the  injury  alleged,  whether  it  is  irremediable 
in  its  nature,  whether  an  action  at  law  will  afford  adequate 
remedy,  whether  the  parties  are  able  to  respond  for  the 
damages  vesulting  from  the  injury,  and  other  considerations 
which  ordinarily  govern  a  court  of  equity  in  the  exercise  of 
its  preventive  process  of  injunction." 

Sprarjue  v.  Stcnre  (1  Pi.  I.,  267),  holds  that  acquiescetice 
may  be  a  bar  to  the  Court's  interference  by  injunction;  the 
cases  therein  considered  are  to  the  same  effect.  The  order 
was  refused  in  Bridson  v.  Benel'e  (1  Beavan,  1),  because  the 
complainant  had  not  proceeded  with  due  celerity  to  estab- 
lish his  right  at  law.  In  Slade  v.  SnUiva)i  (17  Cal.,  105), 
the  Supreme  Court  refused  to  reverse  the  decree  of  the  Dis- 
trict Court,  dismissing  a  bill  to  enjoin  miners  from  working 
a  ravine,  a  short  distance  in  front  of  the  plaintift"s  improve- 
ments on  the  public  lauds,  holding  that  some  of  the  damage 
anticipated  by  the  phiiutiff  was  very  slight,  and  the  rest  a 
"mere  matter  of  speculation." 

Catching  v.  Basselt  (32  L.  J.  Ch.,  286),  was  an  extinguish- 
ment of  an  easement  by  assent.  In  Birmingam  v.  LIo//d 
(18  Ves.,  515),  the  plaintiff" sought  to  restrain  the  defendants 
from  draining  water  from  their  own  coal  mine.  The  legal 
rights  of  the  respective  parties  were  disputed.  Lord  Eldon 
refused  an  interlocutory  order  for  an  injunction  until  the 
plaintiff's  right  to  damages  had  beeu  established  at  law.    In 


11 

Parrott  v.  Palmer  (3  Myl.  and  Keen,  631),  chancery  refused 
to  enjoin,  in  the  face  of  long  continued  acquiescence  in  the 
act  of  defendants  and  its  consequent  injuries;  but  turned 
the  complaint  over  to  liis  action  at  law.  Maxwell  v.  Hogg 
and  Hogg  v.  3IaxiueU,  were  cross  applications  for  an  injunc- 
tion order  by  rival  promoters  or  publishers  of  magazines, 
both  to  be  called  the  "Belgravia."  Each  was  refused  the 
order,  under  circumstances  which  justified  the  action  of  the 
Court.     (L.  E.  2  Ch.  App.,  319.) 

It  appeared  in  Bassett  v.  Tlie  Coiiiiyonj  (47  N.  H.,  347), 
that  while  the  injury  done  to  a  small  portion  of  the  plain- 
tiff's land  (caused  by  increasing  the  height  of  defendants' 
dam)  was  trifling,  the  defendants  had  expended  $850,000  in 
enlarging  their  works  so  that  the  additional  water-power 
could  be  put  in  requisition.  Under  these  circumstances  it 
was  held  that  the  fact  that  the  plaintiff  stood  by  for  seven 
or  eight  j'ears  without  objection,  was  sufficient  evidence  of 
acquiescence  to  prevent  an  intervention  by  injunction.  Grei/ 
V.  The  Ohio  (1  Grant's  Cases,  412),  was  a  bill  to  restrain  the 
defendant  from  using  its  railroad  across  the  common  in 
Alleghany  City.  Lewis,  J.,  said:  "  The  property  taken  is 
hardly  of  any  appreciable  value;  the  right  of  complainant 
is  at  best  doubtful;  his  acquiescence  until  the  road  was  com- 
pleted renders  it  impossible  to  grant  the  relief  applied  for 
without  doing  irreparable  injury  to  the  defendant,  while  no 
benefit  would  be  conferred  on  the  complainant  which  he 
could  not  obtain  by  an  action  at  law."  Two  of  the  Judges 
dissented,  and  the  injunction  was  refused  "on  an  equal 
division." 

In  Diuin  v.  Spurrier  (7  Ves.  Jr.,  235),  Lord  Eldon 
remarked:  "I  fully  subscribe  to  the  doctrine  that  this 
Court  will  not  permit  a  man  knowingly,  though  but  pas- 
sively, to  encourage  another  to  lay  out  money  under  an 
erroneous  opinion  of  title;  and  the  circumstance  of  looking 
on  is  in  many  cases  as  strong  as  terms  of  encouragement. 
Still  it  must  be  put  upon  the  party  to  prove  that  case  hij 
strong  an  I  cogent  evidence:  leaving  no  reasonable  doubt  that  he 
acted  upon  that  sort  of  encouragement." 

Mr.  Wait  observes  (6  Actions  and  Defences,  281)  that 
while  a  court  of  equity  will  restrain  a  party  in  the  use  of 
water  in  a  manner  injurious  to  another,  yet  the  Court  will 
not  exercise  the  summary  authority  "where  the  right  is 
doubtful,  or  the  facts  are  not  definitely  ascertained."  This 
need  not  be  disputed.  He  adds:  "A  complainant  who 
asks  the  Court  to  restrain  by  injunction  mn-^t  make  a  strong 
prima  facie  case  in  support  of  the  title  he  asserts,  and  show 


12 

that  he  has  been  guilty  of  no  delay  in  applying  for  the  inter- 
position of  the  Court."  In  support  of  the  whole  of  this 
statement  he  cites  Bliss  v.  Kennedy,  (-IS  111.,  67);  Barnhnm 
V.  Kcnipton,  (44  N.  H.,  78);  Shield!^  v.  Armlt,  (3  Green, 
N.  J.  Ch.,234.) 

In  Bliss  V.  Kennedy,  however,  the  Court,  after  saying  that 
by  Wie  law  of  Illinois,  the  right  of  a  riparian  proprietor 
must  ordinarily  be  established  at  law  before  equity  will 
interfere  by  injunction,  holds  that  equity  will  restrain,  until 
a  decision  at  law.  only  wher*e  the  plaintitf  has  not  been 
guilty  of  improper  delay  in  bringing  his  action.  And  the 
Court  observes:  "We  do  not  think  such  a  case  has  been 
made  out  by  the  comphiinants.  They  do  not  allege  in  their 
bill  that  they  have  commenced,  or  are  about  to  commence 
legal  proceedings  to  establish  their  right,  but  call  upon  a 
court  of  chancery  to  establish  it  in  the  first  instance."  Tiie 
ci\se  in  44  New  Hampshire  only  holds  that  equity  will  not 
take  jnrisdiction  when  the  parties  have  a  plain  and  perfect 
remedy  at  law,  and  have  neglected  to  seek  it.  And  the 
case  in  Green,  that,  where  the  right  is  doubtful,  it  should 
usualW  first  be  established  at  law. 

Mr.  Wait  also  says  that  equity  will  refuse  to  inter- 
fere "when  the  damage  is  not  serious,"  or  when  it  ap- 
pears that  the  renewal  of  the  watercourse  will  still  leave  it 
impossible  for  the  party  claiming  it  to  derive  any  benefit 
from  it.  "  But,"  he  adds,  "  if  tiie  injuries  by  diversion  are 
continuous,  or  the  right  to  continue  them  is  set  up  und  persisted, 
in  by  the  defendant,  a  court  of  equity,  if  the  facts  be  prop- 
erly established,  Avill  interfere  bj'  injunction  effectually  to 
protect  the  complainants;  and,  if  the  diversion  of  water 
complained  of  is  a  violation  of  the  plaintift's  right,  and  may 
permanently  injure  that  right,  and  become  b}'  lapse  of  time 
the  foundation  of  an  adveise  right  in  the  defendant,  there  is 
no  more  fit  case  for  the  interposition  of  a  court  of  ecpiity,  by 
way  of  injunction,  to  restrain  the  defendant  from  such  in- 
jurious act."     (6  A.  and  D.,  282.) 

In  Nasser  v.  Seeley  (10  Neb.,  460)  the  plaintiff  "solicited 
employment "  in  the  work  he  afterwards  sought  to  enjoin. 
This  was  a  strong  evidence  of  assent. 

The  Supreme  Court  of  Michigan  said:  "Excejit  in  very 
clear  cases  it  is  better  to  leave  the  parties  to  their  legal 
remedy  in  the  recovery  of  dcimages."  Huxsie  v.  Haxsie,  (38 
Mich.,  77.) 

Parks  V.  Kilham  (8  Cal.,  77),  was  an  action  at  law  to  re- 
cover certain  water  and  damages,  tried  by  a  jury,  who  rend- 
ered a  general  verdict.       The  Court  held  that  an  instruction 


13 

in  the  following  terms  was  ''  substantially  correct:"  "That 
if  those  from  and  through  whom  the  plaintiffs  claim  had 
the  prior  right  to  the  waters,  and  they  stood  by  and  saw 
those  from  wliom  the  defendant  derives  his  title  to  the  ditch, 
and  the  right  to  the  waters  of  the  creek,  appropriate  the  water 
of  the  creek  at  great  expenditure  of  money  and  labor,  un- 
der the  mistaken  idea  that  the  defendant's  vendors  were 
obtaining  the  first  appropriation,  and  did  not  inform  them 
of  the  mistake,  they,  plaintiffs'  vendors,  and  the  plaintiffs 
who  claim  under  them,  are  estopped  from  setting  up  their 
prior  right  at  this  time." 

In  the  light  of  the  subsequent  decisions  it  can  scarcely 
be  claimed  that  the  facts  recited  in  the  instruction  con- 
stituted an  equitable  estoppel  which  could  be  relied  on  as  a 
defense  at  law.  It  may  be  that  the  defendant  had  the 
better  right.  In  fact,  the  defendant's  grantors  seem  to 
have  appropriated  the  water  before  the  plaintiffs'  grantors 
even  "  located  "  the  mining  claim.  Is  does  not  appear  that 
the  plaintiff's  predecessors  ever  took  actual  possession  of 
the  mining  claim;  and  even  if  tije  "  location  "  of  the  claim 
preceded  the  defendant's  appropriation,  it  does  not  appear 
that  the  manner  of  the  location  was  such  as  that  defendant's 
grantors  were  bound  to  take  notice  of  it.  But,  whatever 
the  facts,  we  cannot  assent  to  the  proposition — apparently 
recognized  by  the  Court — that  the  mere  silence  of  plaintiffs' 
grantors,  disconnected  from  other  circumstances  in  evi- 
dence, created  an  estoppel  at  law. 

In  Edwards  v.  Allouez  (38  Mich.  46),  the  Court  said  : 
"  The  writ  is  not  ej:  dehilo  justUice  for  ani/  injury  threatened 
or  done,  but  the  granting  of  it  must  always  rest  in  sound 
discretion  governed  by  the  na/ure  of  the  case  ;"  and,  as  the 
injury  threatened  to  the  plaintiff  was  small,  for  which  dam- 
ages at  law  would  be  full  compensation,  the  injunction  was 
refused. 

Trophagan  v.  The  31ayor  (29  N.  J.  Eq.,  208),  was  a  case 
where  the  city  authorities  had  already  opened  a  street.  The 
plaintiffs  had'permitted  the  authorities  to  oust  them  (with- 
out seeking  to  recover  the  possession  at  law)  and  to  ex- 
pend a  large  amount  of  public  funds.  The  Vice  Chan- 
cellor said  the  complainants  "  had  encouraged  or  santioned" 
the  action  of  the  public  authorities,  and  "  by  laches  if  not 
acquiescence "  had  lost  the  right  to  have  the  use  of  the 
street  forbidden."  Demarest  v.  Hardham  (34  N._  J.  Eq., 
469),  was  a  bill  to  enjoin  the  use  of  a  steam  engine  by  a 
book-binder  in  an  adjoining  building.  The  Vice  Chan- 
cellor refused  a   general   injunction,  but   enjoined   the   de- 


14 

fendant  from  operating  his  engine  so  as  to  produce  a  vibra- 
tion in  plaintiff's  building,  etc.  He  said  an  injunction  to 
restrain  a  lawful  business  should  never  be  granted,  except 
a  plaintiff  shows  an  invasion  of  a  clear  legal  right,  which 
cannot  adequately  be  redressed  by  damages,  but  remarked 
"  equity  takes  cognizance  of  a  nuisance  which  is  permanent 
in  its  character,  or  which  produces  a  constantly  recurring 
grievance,  more  readily  tlian  any  other." 

The  Supreme  Court  of  the  United  States  has  said  that  a 
bill  for  a  private  nuisance  should  show  that  the  plaintiff'  is 
without  adequate  legal  remedy;  but  that  equity  w'ill  inter- 
fere by  injunction,  where  the  injury  is  irreparable,  or  from  its 
continuance  must  occasion  a  constautlv  recurring  grievance. 
And  to  justify  an  injunction  until  a  trial  at  law  can  be  had, 
no  improper  delay  in  resorting  to  a  court  of  law  must  be 
shown — three  years  or  more  of  delay,  precluding  a  party 
from  relief  in  equity,  until  he  ha^  vindicated  his  rirjhl  at  laic. 
Parker  v.   Woolen  Co.,  (2  Black,  545.) 

Brown  v.  Carolina:  The  injury  to  plaintiff"  Avas  trifling  and 
susceptible  of  adequate  compensation  in  damages.  (83  N. 
C.  128.) 

Fidler  v.  InhahitoMs:  A  case  of  acquiescence.  The  appli- 
cation was  to  restrain  the  appropriation  of  monej',  alleged  to 
have  been  collected  bj-  a  town  under  an  illegal  tax  lew. 
(1  Allen,   166.) 

Del  Monte  v.  Pond:  An  appeal  from  an  order  refusing  to 
dissolve  a  preliminary  injunction.     (23  Cal.,  84.) 

Royal  Bank  v.  Grand  Junction:  The  facts  are  very  com- 
plicated. While  the  terms  "laches"  and  "unreasonable  de- 
hiy"  are  employed  wdth  reference  to  the  conduct  of  the  plain- 
tiff, the  case  shows  that  these  expressions  are  used  to  denote 
an  a  quiescence  or  assent,  which  the  plaintiff  afterwards 
sought  to  withdraw.     (125  Mass.,  490.) 

Brown  v.  County:  X  bill  by  the  county  to  enjoin  the  col- 
lection of  a  judgment  against  it.  The  Supervisors  of  the 
county  made  two  sevei'al  tax  levies  for  the  payment  of  the 
judgment,  after  they  were  expressly  notified  of  its  existence, 
and  for  what  it  was  recovered.     (95  U.  S.,  157.) 

Godden  V.  Kininiel:  Clifford  j'  said:  "Where  there  has 
been  gross  laches  and  an  unexplained  acquiescence  in  the 
operation  of  an  adverse  right,  courts  of  equity  frequently 
treat  the  lapse  of  time,  eveu  for  a  shorter  period  than  that 
specified  in  the  statute  of  limitations,  as  a  presumptive  bar 
to  the  claim.     (99  U.  S.,  201.) 

Blnnchard  v.  Doeriw/:  Clear  case  of  acquiescence.  (23 
Wis.,  203-4.) 


15 

Sheldon  v.  Rockwell:  "The  jjlaintiff  bv  his  sileuce  and 
acquiescence"  (for  more  than  nineteen  years,  during  most  of 
which  time  the  acts  done  by  defendan's  were  protected  and 
fostered  by  express  statute)  "has  invited  and  encouraged 
the  defendants  to  expend  their  money,"  etc.      (9  Wis.,  161.) 

Angell  says:  "No  single  proprietor,  without  consent,  has 
the  right  to  use  the  flow  of  the  water  in  such  manner  as  Avill 
be  to  the  prejudice  of  any  other."  (On  Water-courses,  Sec. 
340.) 

In  Cobb  V.  Smith  (16  Wis.,  696)  the  Court  holds  tliat  an 
acquiescence  by  the  plaintiffs  of  several  years,  in  the  flowing 
of  their  lands,  was  such  evidence  of  assent  as  would  author- 
ize the  refusal  of  an  injunction.  "If  the  plaintiffs  have 
suffered  damage,  they  have  their  common  law  remedy." 

"When  ajiersonrtc^/^a'e.sces  -^fr  *  *  a  court  of  equity  Avill 
not  interfere  by  injunction,  but  his  remedy  at  law  remains." 
(Wood  on  Nuisances,  Sec.  360.) 

Escourt  v.  Escourt:  Biil  to  enjoin  the  use  of  a  trade-mark. 
The  "hop  essence"  was  an  article  used  by  brewers  only. 
The  plaintiff  waited  seven  months  after  advertisement  of  de- 
fendant asserting  its  rights,  and  then  brought  suit.  He  was 
unable  to  show  that  a  single  brewer  had  been  misled — a  cir- 
cumstance on  which  Lord  Cairns  lays  some  stress.  But 
tlieie  was  a  conclusive  reason  why  equity  should  not  int<!r- 
fere.  The  "hop  essence"  was  introduced,  recommended 
and  sold,  to  enable  brewers  to  supply  to  the  public  a  liquid 
Avhich  they  might  represent  as  being  made  of  pure  hoj)s, 
when  it  was  not  in  fact  so  made.  The  Chancellor  said:  "It 
is  not  the  province  of  the  Court  to  protect  speculations  of 
this  kind."     (L.  E.  10,  Ch.  App  ,  270.) 

Wendellw  Van  Benssalaer;  A  case  of  complete  estoppel. 
(1  John  Ch.,  344.) 

In  IFare  v.  Regods,  (3  De  Gex  and  Jones,  280)  the  plain- 
tiff's lands  had  been  temporarily  flooded,  but  there  was  no 
threatened  future  injury.  The  Aveight  which  may  possibly 
be  given  to  mere  delay  is  suggested  by  the  remark  of  the 
Chancellor,  who  said  that  although  the  delay  did  not  amount 
to  absolute  proof  of  acquiescence,  yet  "it  was  calculated  to 
throw  considerable  doubt  upon  the  reality  of  the  })lcdutiff's 
injury."' 

Goodin  v.  Cincinncdi:  Held,  in  eflect,  that  one  who  per- 
mits "a  public  railroad  to  be  constructed  over  his  land" 
cannot,  after  large  expenditures,  made  on  the  faith  of  his 
apparent  acquiescence,  enjoin  its  use.  There  remains  only 
the  right  of  compensation.     (18  Ohio  St.,  169). 

JViggin  v.    The  Mayor:     An  attempt  to  enjoin  the  coUec- 


16 

tioii  of  a  local  asse.ssincut  for  impioviug  a  street  iu  New 
York  city.  Held:  After  tlie  report  of  the  Commissioners 
of  Assessment  M-as  approved  by  the  Supreme  Court  (in  ac- 
cordance with  the  statute)  equity  would  not  interfere  to  cor- 
rect their  estimates.  Further:  If  the  proceedings  of  the 
Common  Council  were  void,  a  sale  of  the  complainant's 
property  would  not  cast  a  cloud  on  his  title.      (9  Paige,  2J:.) 

The  Muster  of  the  Eolls  said,  that  acquiescence  in  the 
erection  of  noxious  works,  while  the}^  produce  little  injury, 
does  not  warrant  the  subsequent  enlargement  of  them  to  an 
extent  productive  of  great  damage.  {Bankx(H  v.  Hoid/hlon, 
27  Beavan,  425.) 

Mr.  Spence  writes:  "The  Court  of  Chancery  will  there- 
fore in  many  ca<es  refuse  to  give  its  aid  in  favor  of  an  equit- 
able claim,  though  a  less  period  than  the  corresponding 
statutory  period  shall  have  elapsed,  if  the  length  of  time  and 
circuuislaiices  of  the  case  shall  require  the  application  of  that 
principle."     (Eq.  Jurisd c,  61.) 

In  the  matter  of  Lord:  "  For  the  peace  of  society  equity 
will  refuse  to  interfere  when  there  has  been  gross  neglect  iu 
prosecuting  rights,  or  long  and  unreasonable  acquiescence  in 
the  assertion  of  adverse  rights."     (78  N.  Y.,  112.) 

Grant  v.  Tynneij :  The  Court  refused  injunction  when  a 
trifling  though  continuous  trespass  had  been  submitted  to 
for  six  years,  but  left  the  plaintiffs  to  their  rights  at  law.  (L. 
R.,8Ch.  App.,14.) 

FuUivoodw  Fidlwood :  The  Chancellor  said  "mere  lapse 
of  time,  unaccompanied  by  anything  else,  has  just  as  much 
effect,  and  no  more,  in  barring  an  injunction,  as  it  has  in 
barring  an  action  for  deceit."  "  In  saying  this  I  do  not  shut 
my  eyes  to  the  possible  existence  of  a  purely  equitable 
defense,  such  as  acquiescence,"  etc.  (L.  E.,  9  Ch.  Div., 
176.) 

In  Burden  v.  Slein  {21  Ala.,  104);  it  was  held:  1st.  A 
riparian  proprietor  may  enjoin  in  equity  without  first  estab- 
lishing his  right  at  law.  2d.  That,  while  in  cases  where 
the  plaintiff's  right  is  not  clear  until  established  at  law, 
equity  will  refuse  to  enjoin  if  it  is  shown  that  he  has  been 
guilty  of  imjn-oper  delay,  the  principle  has  no  application 
where  his  right  is  clear,  and  of  such  a  character  as  entitles 
him  to  ask  for  the  interference  of  equity  without  resorting 
to  law  in  the  tirst  instance. 

Thomas  v.  Woodman  :  The  only  injury  complained  of  by 
plaintiff  was  an  offensive  odor  arising  from  the  decay  of 
grass  accumulating  in  the  bed  of  a  stream  near  his  premises. 


17 

The  plaintiff  knew  the  "fall  consequences"  for  two  years 
before  applying  for  relief.     (23  Kan.,  277.) 

In  Corning  v.  Winslow  (40 :  N.  Y.,  191),  the  Court  of  Ap- 
peals was  tlivided.  The  Judges  agreed,  however,  that 
equity  will  interfere,  by  mandatory  injunction,  to  compel 
the  restoration  of  running  Avater  to  its  natural  channel;  and 
that,  since  the  Code,  it  is  not  necessary  tliat  phiiutiff's  right 
should  be  first  established  at  law.  A  minority  of  the  Judges 
thought  the  circiimstances — in  view  of  the  great  loss  and 
injury  to  the  defendant,  the  slight  advantage  to  be  gained 
to  the  phiintiff  by  a  restoration  of  t!ie  water,  the  assent  of 
plaintiff's  grantor  to  the  building  of  permanent  and  expen- 
sive work's  during  the  lease — and  the  delay  of  the  plaintiff 
after  the  expiration  of  the  lease— rendered  tlie  issuing  of  an 
injunction  improper.  The  majority  held  these  conditions  did 
not  deprive  the  phiintiff  of  his  right  to  equitable  relief. 

In  Corning  v.  Iroy  (39  N.  Y.,  313),  the  Court  said:  "In 
order  to  estop  the  owner  of  a  water  right  in  equity,  from 
enforcing  his  right  on  I  he  ground  of  his  ktiowledge  and  ac- 
quiescence in  the  making  of  expenditures  and  improvements 
thereon  by  another,  the  co)iseiit  and  agreement  of  such  owner 
thereto  ought  to  be  established  by  the  clearest  and  most 
satisfactory  evidence." 

This  statement  is  said  to  be  a  mere  dictum,  but  it  appears 
to  us  to  be  substantially  a  correct  exposition  of  the  rule. 
In  the  light  of  the  authorities  it  seems  clear  that  the  ac- 
quiescence of  the  plaintiff,  which  will  deprive  him  of  his 
light  to  appeal  to  equity,  must  be  such  as  proves  his  intel- 
ligent assent. 

It  may  be  that  delay  in  seeking  relief  may  tend  in  some 
appreciable  degree  to  strengthen  the  probability  that  plain- 
tiff has  assented  to  a  slight  injury;  or  tend,  in  connection 
with  the  other  evidence,  to  show  that  he  has  suffered  no  real 
injury — as  suggested  in  Ware  v.  Regents  (supra.)  But  in 
every  case  the  question  returns  has  the  plaintiff"  assented  to 
the  acts  of  the  defendant?  We  see  no  error  in  the  statement 
{Corning  v.  Troy,  supra)  that  the  "consent  and  agreement" 
of  the  plaintiff"  must  appear.  It  perhaps  adds  no  force  to 
this  statement  to  say  that  the  consent  ought  to  he  estab- 
lished by  "the  clearest  and  most  satisfactory"  evidence,  al- 
though similar  language  was  used  by  Lord  Eldon.  (Dann 
v.  Spurrier,  supra.) 

Under  our  Codes  the  riparian  proprietor  is  not  required  to 
establish  his  right  at  law  by  recovering  a  judgment  in  dam- 
ages before  applying  for  an  injunction.  The  decisions  (in 
cases  of  alleged  nuisances)  based  on  the  failure  of  the  com- 


18 

j>laiiiant  to  liave  had  his  right  establislied  at  law,  have  no 
apositeness  here.  Here  the  plaintili'  must  indeed  clearly 
make  out  his  right  in  equity  and  show  that  money  damages 
will  not  give  him  adequate  compensation.  If  he  fail  to  do 
this,  relief  in  equity  will  be  denied.  But,  if  he  j^roves  his 
case,  relief  will  be  granted,  although  he  has  not  demanded 
damages  at  law.  In  the  case  at  bar  the  plaintiflfs  do  not  ad- 
mit that  damages  would  constitute  compensation,  and  ask 
for  an  injunction  until  they  shall  recover  such  compensation 
in  an  action  for  damages.  The  decisions  which  bear  on 
tliat  class  of  cases,  and  which  require  of  the  plaintiff  to  show 
that  he  has  promptly  sought  redress  at  law,  have  little  ap- 
plicability. 

In  considering  the  question  whether,  in  tlie  case  at  bar, 
the  plaintiffs  assented  to  the  acts  of  the  defendant,  and  the 
injuries  caused  b}' those  acts,  we  are  bound  to  assume  that 
the  waters  of  Kern  River,  in  their  natural  course,  ordinarily 
flow  to  the  lands  described  in  the  complaint,  or  to  a  consid- 
erable part  of  them,  because  there  was  a  substantial  conflict 
in  the  evidence  as  to  that  matter,  and  the  Court  below  erred 
in  rejecting  certain  testimony  bearing  on  that  issue.  We 
must  also  assume  that  plaintitis  were  the  owners  or  entitled 
to  the  possession  of  such  lands,  when  the  defendant's  alleged 
right  to  appropriate  the  waters  began,  because  (if  the  certi- 
ficates hereinafter  spoken  of  had  been  admitted  in  evidence) 
the  certificates  of  purchase  woidd  have  proved  the  right  of 
exclusive  possession.  Moreover,  we  must  assume,  that  the 
injury  to  the  plaintiffs  was  of  the  character  and  extent  which 
the  evidence  tended  to  prove,  because,  if  any  injuries  flowed 
to  plaintifts  from  defendant's  acts,  there  was  no  conflict  as 
to  the  nature  of  those  injuries. 

The  injury  to  the  plaintifts,  so  far  as  it  had  already  ac- 
crued, was,  perhips,  such  as  could  have  been  compensated  in 
money  damages.  But  even  if  this  should  be  conceded,  the 
defendant  has  asserted  its  right  to  continne  its  diversions, 
and  throughout  these  proceedings  has  persisted  in  that 
assertion.  The  entire  injur}',  already  accrued  and  future, 
is  irremediable  at  law;  since  a  judgment  for  damages  would 
not  constitute  complete  and  adequate  redress,  within  the 
meaning  of  the  decisions.  We  cannot  so  hold,  in  view  of 
the  nature  and  extent  of  the  injuries,  unless  Ave  hold  that 
the  liparian  proprietor  can  never  ask  for  an  injunction  when 
future  diversicns  of  waters  are  threatened;  and  the  adjudi- 
cations to  the  contrary  are  very  numerous.  So  to  hold 
would  be  to  cast  upon  the  plaintiffs  the  burden  of  bringing 
and  maintaining  a  multiplicity  of  suits  at  law.     The  continu- 


19 

ation  of  tlie  diversions  must  result  in  constantly  renewed 
grievances,  and  might  result  in  the  acquisition  of  an  adverse 
right  by  the  defendant.  And  while  the  defendant  has  ex- 
pended ver}'  large  sums  of  money,  the  evidence  tends  to 
prove  that  neither  the  injury  already  inflicted  on  the  plain- 
tiffs, nor  that  to  be  anticipated,  is  slight  or  trivial,  but  that 
it  is  great  and  substantial. 

Under  these  circumstances  we  must  decline  to  hold  that 
by  their  omission  to  biing  this  action  sooner  than  it  was 
brought  (with  actual  or  presumed  knowledge  of  the  things 
done  by  the  defendant)  the  plaintifts  are  shown  to  have 
acquiesced  in  the  defendant's  diversion  of  the  water,  and 
the  consequences  theieof,  in  such  manner  as  that  the  asser- 
tion of  their  rights  in  this  action  is  to  be  treated  as  an 
attempt  to  ignore  or  to  recede  from  a  previous  assent. 

The  finding  of  unreasonable  laches  often  assumes  the  ex- 
istence at  one  time  of  a  cause  of  action.  But  the  facts  found 
by  the  Court  below^,  on  which  is  based  the  conclusion  of 
laches,  do  not  show  assent,  unless  the  plaintiffs  must  be  held  to 
have  assented,  because  they  ought  to  have  ascertained  that 
the  necessary  consequences  of  the  projected  works  of  the 
defendant  would  be  to  deprive  them  of  water  which  natur- 
ally flowed  to  their  lands;  or,  unless  the  delay  to  sue  after 
the  water  ceased  to  flow,  as  a  consequence  of  defendant's 
work,  was,  under  all  the  circumstances,  evidence  of  assent. 
The  facts  from  which  the  conclusion  of  laches,  and  neglect 
is  drawn,  if  sustained  by  the  evidence,  are  sustained  only  by 
evidence  of  silence  on  the  part  of  the  plaintiflFs  with  knowl- 
edge proved  or  presumed  from  the  notoriety  of  the  acts 
and  claims  of  defendant. 

The  inherent  ditficulty  of  anticipating,  in  the  fall  of  1875, 
when  "a  small  quantity  of  water"  was  used  by  the  defend- 
ant, what  would  be  the  results  of  the  completed  canal,  or 
when  a  considerable  progress  should  be  made  in  its  con- 
struction, is  a  sufficient  answer  to  the  suggestion  that  the 
plaintiffs  should  then  have  known  those  results.  If  imme- 
diately after  the  work  done  in  1875,  the  plaintiffs  had  ap- 
plied for  an  injunction,  would  a  court  of  equity  have  granted 
it  upon  facts  Avhich  would  have  shown  a  possible  or  con- 
tingent serious  injury  V  It  would  have  been  obligatory  on 
the  plaintifts,  atleasf,  to  establish  clearly  that  the  threatened 
acts,  if.  consummated,  would  result  in  grave  injury  to  them; 
and  in  view  of  the  many  streams  in  that  region,  the  various 
currents  of  some  of  them,  and  the  other  natural  features  of 
the  country,  it  would  have  been  extremely  difficult,  if  not 
impossible,  to  prove  that  such  injury  would  follow.      And, 


20 

although  the  Court  found  that  the  defenchmt  contiuuously 
prosecuted  its  works,  it  does  not  appear  from  the  findings 
iiow  far  those  Avorks  were  extended,  or  what  were  their  con- 
sequences, at  tin}'  point  of  time  before  tlie  phiintiffs  began  to 
sutler  the  real,  serious  and  substantial  injuries  of  wliich 
they  complain. 

The  conclusion  of  law  cannot  be  treated  as  a  finding  of 
fact.  It  is  called  a  "conclusion  of  law"  in  the  decision, 
and  is  in  the  form  of  a  proposition  of  law — "such  laches 
and  neglect  as  disentitle  the  plaintifit's,'  etc.  It  does  not 
respond  to  facts  pleaded,  nor  is  it  a  direct  finding  of  the 
fact  of  assent.  But,  if  it  weie  a  finding  of  fact,  the  evidence 
does  not  sustain  it.  The  evidence,  altliough  it  may  be  cir- 
cumstantial, must  affirmatively /jvore  the  assent. 

It  is  urged,  however,  that  the  defendant  was  not  bound 
to  plead,  nor  (since  the  findings  need  respond  only  to  the. 
material  issues  made  by  the  pleadings)  was  the  Court  bound 
to  find  the  ])laintiifs'  consent,  or  the  latches  or  acquiescence 
which  would  prove  consent.  That  the  matter  of  hiches  or 
neglect,  or  acquiescence  arises  out  of  the  evidence:  and  that 
a  court  of  equity  may  and  ought,  sue/  sponte.  to  deny  relief, 
where  an  appeal  is  made  to  its  discretionary  power  of  grant- 
ing or  refusing  an  injunction,  when  there  has  been 
unreasonable  dela}-  (which  in  view  of  the  circumstances 
shows  assent;  in  seeking  its  preventive  process. 

If  all  this  were  conceded,  the  question  would  become  an 
original  one  in  this  Court,  and  the  rule  (if  it  were  applicable 
otherwise)  that  this  Court  will  not  interfere  to  set  aside  a 
finding  when  there  is  a  substantial  conflict  in  the  evidence, 
would  not  be  applicable.  As  an  original  question  the  evi- 
dence sent  here  does  not  prove  assent.  We  are  convinced 
that  if  the  question  were  submitted  to  a  jury  upon  that 
evidence  a  verdict  of  assent  could  not  be  upheld. 

II. 

The  plaintifffi  are  not  estopj^ed  from  maintaining  this  action 
by  reason  of  their  assent  to  and  approval  of  certain  jcts  of 
a  third  person — The  Kern  VaUeij  Water  Company. 

The  next  question  is  cognate  to  the  one  just  discussed.  It 
arises  on  certain  findings  from  which,  respondent  contends, 
it  appears  plaintift's  lost  their  right  to  complain  of  any  di- 
version of  water,  before  the  commencement  of  this  action. 

The  Court  below  found : 


21 

"  That  the  waters  of  Kern  river  do  not  and  never  did  nat- 
urally and  usually  flow  to,  through,  along,  by,  over  or  upon 
the  said  lands  of  plaintifls,  or  any  part  thereof;  and  that 
until  the  year  1876,  whatever  of  the  water  of  Kern  river 
flowed  to  or  reached  the  said  lands  or  any  part  thereof,  was 
from  the  unusual  and  extraordinary  overflow  of  said  river, 
or  of  Kern  and  Buena  Vista  Lakes,  or  from  the  percolation 
and  seepage  in  these  findings  mentioned. 

"That  in  December,  1875,  one  Souther  commenced,  and 
in  Januar}',  1876,  completed  a  dam  across  Buena  Vista 
Slough,  at  a  point  designated  on  the  map  hereto  annexed,  as 
Cole's  Crossing,  on  or  about  section  Ave  (5),  township  thirty- 
one  (31)  south,  range  twenty-five  (25)  east.  Mount  Diablo 
base  and  meridian,  and  south  of  where  the  waters  of  New 
river  enter  Buena  Vista  Slough,  and  thereby  at  said  point, 
checked  the  natural  flow  of  the  waters  of  said  river  through 
said  slough  into  Buena  Vista  and  Kern  Lakes,  and  caused 
the  waters  there  flowing  to  take  a  northward  course  and 
away  from  the  said  lakes.  That  in  March,  1876,  the  pres- 
sure of  the  waters  against  said  dam  broke  through  the  same, 
and  said  river  resumed  its  natural  flow  to  Buena  Vista  and 
Kern  Lakes.  That  during  the  said  interval  of  its  flow 
northward,  the  waters  of  said  New  river  flowed  along  said 
Buena  Vista  Slough  and  the  adjacent  country,  to  and  over 
Buena  Vista  Swamp, 

"  That  in  the  fall  of  1876,  certain  parties  commenced  the 
construction  of  two  certain  canals,  which  are  correctly  laid 
down  on  the  map  hereto  annexed  and  marked  respectively 
'East  Side  Canal'  and  'Kern  Valley  Water  Company's 
Canal.'  The  said  'East  Side  Canal'  commences  on  section 
fourteen  (14),  township  thirty  (30)  south,  )ange  twentj-four 
(2-4)  east,  and  extends  thence  some  three  (3)  miles  north,  on 
the  eastern  side  of  said  Buena  Vista  swamp,  and  does  not 
touch  any  of  said  lands  of  the  plaintiffs.  The  other  canal 
heading  on  section  fourteen  (14),  township  thirty  (30)  south, 
range  twenty-four  (24)  east,  as  at  present  constructed,  ex- 
tends northward  some  twenty-four  miles,  is  one  hundred  and 
twenty  feet  wide  on  the  bottom,  one  hundred  and  forty  feet 
wide  on  the  top,  and  ten  feet  deep,  with  a  fall  of  one  foot 
per  mile,  and  capable  of  carrying  more  than  twelve  hundred 
cubic  feet  of  flowing  water  per  second,  and  terminates  at  a 
point  outside  of  said  lands  of  plaintiflfs.  That  in  June, 
1877,  the  Kern  Valley  Water  Company,  a  corporation  organ- 
ized and  existing  under  the  laws  of  California,  for  the  pur- 
pose of  acquiring  canals  and  water  rights  in  said  county  of 
Kern  and  elsewhere  within  this  State,  to  be  used  or  dis]iosed 


22 

of  for  ivrigatioii,  trausportatiou,  domestic,  mechauical  and 
other  pin-i)oses,  took  possession  and  control  of  said  canals, 
and  thenceforth  coiitinned  the  construction  thereof  north- 
ward toward  the  lake  known  as  Tnlare  Lake,  designated  on 
said  map.  That,  in  the  fall  of  the  year  1877,  the  said  Kern 
Valley  Water  Company  reconstructed  the  said  dam  at  Cole's 
Crossinjjj;  and,  in  connection  therewith,  constructed  a  levee 
extending  westward  to  the  bluffs  on  high  ground,  and  run- 
ning eastward  from  said  dam  about  one  and  one-quarter 
miles,  as  shown  on  said  map,  tl.'ereby  preventing  the  waters 
of  Kern  river  from  flowing  to  Buena  Yista  Lake  and  turning 
the  same  northward  to  their  said  two  canals.  That,  at 
the  head  of  said  canals,  and  in  conjunction  therewith,  the 
said  Kern  Valley  Water  Company,  in  1877,  constructed  a 
certain  other  dam  and  levee  extending  completely  across  the 
said  Buena  Vista  swamp,  as  shown  on  said  map,  and  thereby 
completely  obstructed  and  prevented  the  natural  flow  of  any 
water  into,  through,  or  over  said  swamp  northward  of  said 
last  mentioned  levee,  and  appropriated  and  took  possession 
and  control  of  all  the  Avaters  reaching  said  levee,  and  turned 
the  same  inio  the  said  canals.  That  the  said  dam  and  levee 
last  mentioned  are  some  distance  southward  from  the  south- 
ernmost part  of  the  said  lands  of  the  ])laintiffs,  and  from  and 
after  their  construction  no  water  has  naturally  flowed,  or 
could  naturally  flow,  beyond  the  head  of  said  canals,  or  to 
or  upon  the  said  lands  of  the  plaintiffs,  or  any  part  thereof. 

"That  the  construction  of  the  canals,  dams  and  levees 
described  in  the  preceding  finding,  was  undertaken  and 
prosecuted  with  the  knowledge,  consent  and  approval  of  tJie 
plaintiffs. 

"  That  the  levee  last  described  in  said  preceding  finding 
was  constructed  for  the  purpose  of  diverting  all  the  water 
reaching  said  levee,  into  the  said  canals,  and  such  levee  does 
entirely  obstruct,  and  since  its  construction  has  obstructed 
the  natural  flow  of  any  water  northward  in  said  Buena  Vista 
swamp,  beyond  said  levee,  and  diverts  the  same  into  said 
canals,  and  that  the  plaintiffs,  at  and  before  the  time  of  the 
commencement  of  the  construction  of  the  said  levee,  knew 
of  the  purposes  thereof,  and  approved  the  same,  and  knew 
of  the  beginning  and  prosecution  of  the  construction  there- 
of, and  consented  to  and  approved  of  such  construction. 
That  said  canals  and  levee  were  constructed  at  great  ex- 
])ense,  and  because  of  and  in  reliance  upon  the  said  approval 
and  consent  of  the  plaintiff's,  and  hut  for  snch  approval  and 
consent  luould  not  have  been  conslr acted." 

The  notice  of  appropriation  of  74,000  inches  of  water  was 


23 

posted  and  filed  for  record  by  defendant's  assignors  May  4, 
1875.  Their  subsequent  acts  (it  may  here  be  conceded), 
rehited  back  to  the  posting  and  filing  of  tlie  notice. 

It  may  Avell  be  doubted  whether  the  evidence  sustains  the 
finding  that  the  plaintifts  consented  to  and  aj^proved  of  the 
canals  and  dams  mentioned  in  the  foregoing  findings.  We 
shall  assume,  however,  that  there  was  a  substantial  conflict 
in  the  evidence  in  that  regard. 

The  building  of  the  two  dams,  and  the  assent  of  the 
plaintifi's  thereto,  as  found  by  the  Court,  intervened  between 
the  appropriation  by  defendant's  assignors  and  the  com- 
mencement of  this  action. 

The  construction  of  the  dam  at  Cole's  Crossing,  with  or 
without  the  plaintiffs'  consent,  is  unimportant  (with  refer- 
ence to  the  question  we  are  about  to  consider),  if  the  waters 
of  Kern  river  have  never  naturidly  or  usuallj-  flowed  to  their 
lands.  The  plaintiffs  did  not  become  riparian  proprietors 
by  reason  of  a  diversion  of  the  waters  of  Kern  river  toward 
their  land  (caused  by  the  dam  at  Cole's  Crossing),  with  any 
right  to  complain  of  an  appropriation  made  by  the  defend- 
ant, or  its  assignors,  ahove  Cole's  Crossing,  and  he/ore  the 
dam  was  constructed  at  that  place.  And,  on  the  other  hand,  if 
part  of  the  waters  of  Kern  river,  in  their  usual  and  natural 
flow,  reached  the  lands  of  plaintiffs  (and  they  Avere  deprived 
of  it  by  defendant),  it  is  immaterial  that  more  water  was 
turned  in  their  direction  by  the  dam  at  Cole's  Crossing. 

It  is  said  by  appellants,  that  since  the  Court  found  the 
waters  of  Kern  river  never  naturally  and  usually  flowed  to 
the  lands  of  the  plaintifls,  the  findings  last  recited  must  be 
read  as  a  finding  that  the  levee  near  the  head  of  the  canals 
was  built  for  the  purpose  of  diverting,  and  did  divert  into 
the  canals  of  the  Kern  Valley  Water  Companj',  only  the  waters 
turned  toward  plaintifls'  lands  b}'  the  dam  at  Cole's  Cross- 
ing and  the  waters  of  extraordinary  overflows. 

But  as  the  Court  foimd  that  the  levee  last  mentioned  pre- 
vented the  passage  of  ami  water  to  the  northward  thereof, 
the  respondejit  is  entitled  to  the  benefit  of  the  findings  in 
the  alternative,  that  is  as  declaring  that,  even  if  the  waters 
of  Kern  river,  in  their  natural  and  usual  flow,  would  reach 
the  plaintiff's'  laud,  the  plaintiffs  had  consented  to  the 
erection  of  a  dam  or  levee  by  the  Kein  Valley  Water  Com- 
pany, which  diverted  all  such  waters  from  their  lauds. 

Section  811  of  the  Civil  Code  provides  that  the  servitude 
may  be-  extinguished  b}'  the  performance  of  any  act  by  the 
owner  of  the  servitude,  or  with  his  assent— upon  either  the 
dominant  or  servient  tenement — which  is  inconsistent  with 


24 

its  nature  or  exercise.  This  seems  to  be  :i  recognition  and 
statutory  declaration  of  the  rule  which  Prof.  ^Yasllburn  sajs 
has  become  well  settled,  that  if  the  owner  of  a  dominant 
estate  do  acts  thereon  which  permanentl}^  prevent  his  enjoy- 
ing an  easement  the  same  is  extinguished,  or  if  he  authorize 
the  owner  of  the  servient  estate  to  do  upon  the  same  that 
which  prevents  the  dominant  estate  from  any  longer  enjoy- 
ing the  easement,  the  effect  will  be  to  extinguish  it.  (Ease- 
ments and  Servitudes,  560.) 

The  same  writer  says  that,  as  forming  the  subject  of  prop- 
erty in  connection  with  realty,  water  may  be  viewed  in  two 
lights;  one,  as  one  of  the  elements  of  which  an  estate  is  com- 
posed; the  other,  as  being  valuable  alone  for  its  use,  to  be 
enjoyed  in  connection  wdth  the  occupation  of  the  soil.  "  In 
the  latter  sense  it  constitutes  an  incorporeal  hereditament 
to  which  the  term  easement  is  (has  been)  applied."  (Id. 
207.)  The  liow  of  the  water  to  and  over  tiie  riparian  lands 
is  not  a  mere  easement.  (/S'/o^-fj- v.>S'/»r/ey,  8  Kllis  and  B., 
30.)  But  the  riparian  right,  while  more  than  an  easement, 
may  be  said  to  include  the  qualities  of  an  easement. 

In  Section  801  of  the  Civil  Code,  among  '-land  burdens 
or  servitudes  upon  land,"  are  enumerated  "  the  right  of  re- 
ceiving water  from  land,"  and  "the  right  of  having  water 
flow  without  diminution  or  disturbance  of  any  kind" — Avhicli 
last  includes  the  right  to  have  a  natural  Avater-course  flow, 
subject  to  such  diminution  as  results  necessarily  from  a  rea- 
sonable use  by  a  superior  riparian  proprietor. 

It  has  been  held  that  when  the  lower  proprietor  licenses 
the  upper  to  divert  water  which  w'ould  flow-  to  the  lands  of 
the  licenser,  and  the  licensee  has  executed  the  license,  the 
licenser  does  not  (/nott  the  servitude  within  the  prohibition 
of  the  statute  of  frauds,  but  rather  is  estopped  from  assert- 
ing any  right  in  it.  It  is  not  necessary  to  enter  into  that 
question.  Whether  the  executed  license  would  or  would  not 
be  an  executed  contract:  whether  the  transaction  would  or 
would  not  operate  a  transfer  from  the  licenser  to  the  licensee; 
Section  811  of  the  Civil  Code  declares  that  the  effect  is  to 
"  extinguish  "  the  servitude.  The  Legislature  had  as  much 
power  to  make  this  enactment  as  to  pass  a  statute  of  frauds. 

The  possession  of  the  Kern  Valley  Water  Company,  at  the 
points  where  water  was  taken,  was  perhaps  some  evidence  of 
its  riparian  owner.ship.  But  if  the  act  is  to  be  done  by  the 
licensee,  on  a  third  person's  estate,  and  the  license  be  exe- 
cuted, it  cannot  be  levoked.     (Washburn  E.  &  S.,  568.) 

Ajjpellaiits  claim  that  the  evidence  with  respect  to  the  con- 
sent of  plaintiffs  to  the  diversion  by  the  Kern  Valley  Water 


25 

Compan}^  was  not  admissible  under  the  allegatioDS  of  the 
answer,  because  defendant  did  not  plead  therein  the  facts 
establishing  license  and  its  execution.  Counsel  refer  to 
Humphreys  v.  McCaU  (9  Cal.  59),  where  it  was  held,  in  an 
action  for  damages  for  the  diversion  of  water  appropriated 
by  plaintiffs  on  the  public  lauds — the  defendants  having 
pleaded  the  general  issue  only — that  it  was  not  competent 
for  the  defendants  to  prove  that  a  prior  claim  to  the  water 
existed  in  a  third  person,  but  that  such  defense  should  have 
been  specially  pleaded.  Th  it  case  turned  on  a  priority  of 
occupation,  as  between  the  plaintiffs  and  defendants,  and 
even  if  a  still  earlier  occupation,  by  a  third  person,  had 
been  pleaded,  it  would  have  constituted  no  defense  to  an  ac- 
tion brought  for  a  diversion  of  water  appropriated  by  plaintiffs 
previous  to  any  appropriation  by  the  defendants,  unless  the 
defendants  connected  themselves  with  the  third  person — the 
first  appropriator.  In  the  case  now  before  us,  it  was  for 
the  plaintiffs  to  show  that  they  were  entitled  to  the  flow  of 
the  stream,  or  of  some  part  of  it,  when  this  action  was  com- 
menced. If  their  right  to  the  flow  was  legalh'  extinguished 
prior  to  the  commencement  of  the  action,  we  cannot  perceive 
why  defendant  was  not  entitled  to  prove  the  fact  under  the 
denials  of  the  answer. 

If,  therefore,  the  findings  last  above  referred  to  are  sus- 
tained by  the  evidence,  or  there  is  a  substantial  conflict  in 
the  evidence  with  respect  to  the  matters  set  forth  in  those 
findings,  the  judgment  and  order  must  be  affirmed. 

It  is  to  be  observed  that  plaintiffs  count  upon  their  owner- 
ship of  the  banks  of  Buena  Vista  Slough.  If  they  licensed 
the  Kern  Valley  Water  Company  permanently  to  divert  the 
waters  from  the  slough,  and  by  expenditures  on  the  part  of 
the  Company  the  license  was  executed,  plaintiffs  cannot  re- 
cover, whatever  the  purposes  of  the  diversion,  although 
these  included  a  purpose  to  benefit  the  lands  of  plaintifls  by 
draining  them,  and  the  conduct  of  the  water  to  a  point  be- 
low such  lands,  or  even  a  purpose  to  irrigate  the  plaintiffs' 
lands  through  gates  in  the  canals  of  the  Company  at  points 
separated  from  the  channel  of  the  slough.  However  it 
might  be  (supposing  plaintiffs  had  counted  on  their  owner- 
ship of  the  banks  of  one  of  the  canals),  if  it  appeared  that 
all  the  stock  of  the  Kern  Valley  Water  Company  ws  owned 
by  the  riparian  proprietors  below  the  places  of  diversion  of 
water  from  the  slough — so  that  the  corporation  might  be 
treated  as  the  mere  instrumentality  through  which  the 
riparian  proprietors  carried  out  a  design,  agreed  upon 
among  themselves,   to  change  the  channel  of  the  slough  in 


26 

such  maimer  as  to  provide  more  effecciially  for  the  irriga- 
tion of  their  lands— here  such  facts  do  not  appear  from  the 
findings  or  evidence.  The  corporation  was  a  distinct  entity 
in  which  the  phiintiifs  were  in  no  way  interested,  except  tliat 
there  was  evidence  tending  to  prove  that  one  (perhaps  all) 
of  them  was  a  stockholderlu  it.  Besides,  as  we  have  seen, 
the  plaintiffs  do  not  base  their  claim  for  relief  on  the  state- 
ment in  their  bill  of  complaint,  that  they  are  riparian  pro- 
prietors on  the  new  or  nrtificial  water-course. 

If,  however,  it  should  be  conceded  that  all  the  plaintiffs 
consented  to  and  approved  of  the  construction  by  the  Kern 
Valley  Water  Company  of  the  dam  or  levee  across  the 
swamps  immediately  below  the  east  side  and  Kern  Valley 
Water  Company's  canals,  this  fact  of  itself  would  not  en- 
tirely extinguish  the  rights  of  plaintiffs  to  the  flow  of  the 
Avater-course,  unless  the  dam — as  built  and  consented  by 
plain tiffs^ — obstructed  and  prevented  the  natural  tiow^  of  every 
portion  of  the  water  (except,  perhaps,  mere  leakage), 
through  Buena  Vista  Slough  to  land  of  the  plaintiffs. 

The  Court  below  found  that  the  levee  made  by  the  Kern 
Valley  Water  Company  prevented  "  the  natural  flow  of  any 
water  into,  through  or  over  said  sw^amp  northward  of  said 
levee,"  and  that  after  the  construction  of  said  levee  or  dam, 
"  no  water  has  naturally  flowed  or  could  flow  northward  and 
beyond  the  head  of  said  canals  to  or  upon  said  land  of  the 
plaintifls,  or  any  part  thereof." 

But  there  was  uncontradicted  testimony  that  there  was  a 
head-gate  in  the  dam  or  levee,  at  a  place  designated  b}^  the 
witnesses  as  the  place  wdiere  the  levee  crossed  the  slough, 
which  was  at  times  open,  and  through  which,  when  open, 
water  flowed  in  the  slou|.^h. 

The  Court  did  not  find  the  existence  of  the  head-gate,  and 
there  i-  neither  finding  nor  definite  and  distinct  evidence 
from  which  can  be  ascertained  what  Mas  the  arrangement  or 
agreement  between  the  plaintifls  and  the  w^ater  company,  if 
any,  with  reference  to  the  control  and  management  of  the 
head-gate.  The  Court  found  that  the  plaintifls  consented  to 
the  building  of  the  dam,  and  found  that,  as  built,  the  dam 
entirely  obstructed  the  flow  of  the  water. 

It  is  urged  by  appellants  that  the  very  fact  of  the  exist- 
ence of  the  head-gate  in  the  slough,  unexplained,  proves 
that  plaintifls  retained  a  right  to  the  water  flowing  there. 
But  it  is  enough  if  the  facts  proved  do  not  affirmatively  es- 
tablish that  the  easement  was  entirely  extinguished  The 
levee  as  constructed  did  not  permanently  and  continuously 
stop  the  flow  of  all  the  Avater,  and  the  license  of  plaintifls 
was  no  broader  than  its  execution. 


27 

Although  the  defendant  was  not  bound  to  plead  a  license 
given  and  execute-;]  prior  to  the  commencement  of  the  suit, 
the  buj'den  was  on  the  defendant  of  proving  that  plaiutiflfs 
had  assented  to  acts  of  the  Kern  Valley  Water  Company 
which  permanently  deprived  them  of  all  the  water.  It  was 
hy  such  assent  only  that  they  could  estop  themselves  from 
claiming  the  benefit  of  any  of  the  water. 

It  may  be  contended,  on  behalf  of  respondent,  the  pre- 
sumption is  that  the  gate  built  by  the  Kern  Valley  Water 
Company,  as  part  of  its  work,  was  under  the  control  of  the 
company,  and  in  the  absence  of  evidence  of  a  reservation 
by  plaintifis  of  a  right  to  enter  upon  the  possession  of  the  com- 
pany and  open  the  gate — or  of  a  right  to  demand  that  the 
Kern  Valley  Water  Company  should  open  it  whenever  plain- 
tiffs might  choose  to  exercise  the  right,  or  open  it  at  definite 
times  or  for  certain  periods — the  Court  below  was  justified 
in  finding  that  plaintiffs  consented  to  a  permanent  occlusion 
of  all  the  waters;  and  that  such  finding  included  and  im- 
plied a  finding  that  the  license  was  not  limited  or  restricted. 

The  question  is  not  free  from  difliculty.  It  is  apparent 
the  Court  below  considered  the  facts  that  the  head-gate  was 
there;  that  it  was  at  times  open,  and  that  when  open  water 
flowed  through  it,  as  immaterial  factors  in  the  evidence  on 
which  it  based  its  conclusion  that  the  dam,  as  erected  and 
assented  to,  entirely  obstructed  the  flow  of  the  stream.  The 
Court  in  effect  held  that  it  Avas  for  the  plaintiffs  to  prove 
affirmatively  the  reservation  of  a  right  to  the  flow,  at  their 
option  or  at  specified  limes.  Doubtless  the  conclusion  that 
plaintiffs  licenced  a  diversion  of  all  the  waters  was  based  in 
part  upon  the  presumption  (in  the  absence  of  evidence  to 
the  contrary)  that  it  was  intended  the  water  company  should 
have  entire  Ciutrolof  its  own  head-gate;  but  this,  it  is  argued, 
is  a  presumption  of  fact  which  the  Court  could  properly 
indulge. 

Suppose  the  single  issue  between  these  parties  was, 
whether  the  license  was  general,  extending  to  all  the  waters, 
or  was  limited,  the  burden  of  showing  its  general  character 
being  on  the  defendant.  In  such  case,  it  might  be  asked, 
would  not  the  defendant  have  made  out  its  case,  iirima  facie 
at  least,  by  prin-ing  the  consent  of  the  plaintiff's  to  the  con- 
struction of  the  levee,  although  it  was  built  Avith  a  gate 
through  Avhicli  A\^aters  might  flow  if  it  should  be  opened? 
Would  iheiiossibU  fact — not  proved — that  plaintiffs  may  have 
reserved  the  right  to  have  the  gate  opened  when  they  de- 
manded it,  or  for  a  definite  part  of  future  time  as  time  should 
pass,  be  considered  as  overcoming  the  presumption  that  the 


28 

Kern  Valley  Water  Company  has  the  control  of  its  own 
property.  If  so,  it  may  be  claimed,  the  case  must  constitute 
an  exception  to  the  general  rule  that  the  burden  of  proof  is 
cast  upon  the  opposite  party,  when  the  party  having  the  af- 
firmative has  established  the  issue  on  his  part,  prima  fade. 

But  here  the  burden  Avas  on  the  defendant  of  proving  that 
the  right  of  the  plaintiffs  to  the  How  of  all  the  Avater  was  ex- 
tinguished. It  would  not  have  been  sufficient  that  it  was 
made  to  appear  that  plaintiffs  had  assented  to  a  diversion  of 
a  portion  of  the  Avaters,  any  more  than  it  Avould  have  been 
sufficient  to  prove  that  plaintiffs  had  granted  a  portion  of  the 
waters.  In  either  case  the  plaintiffs  would  not  have  lost  nor 
parted  Avith  the  right  to  be  protected  in  the  enjoyment  of  the 
waters  they  retained 

Until  it  was  made  to  appear  that  plaintiffs  had  lost  the 
right  to  the  flow  of  any  part  of  the  stream,  the  presumption 
would  be  that  they  retained  a  right  to  all.  And  in  presence 
of  the  fact  that  the  Avork  they  assented  to  did  not  actually 
deprive  them  of  all  the  water,  their  right  to  the  Avater  Avhich 
floAved  through  the  gate,  either  continuously  or  at  intervals, 
was  not  extinguished.  To  apply  the  presumption  that  every 
man  has  a  right  to  control  his  OAvn  property  for  the  benefit 
of  the  defendant  alone,  is  to  assume,  not  only  that  the  gate 
belonged  to  the  Kern  Valley  Water  Company,  but  that  the 
ivafer  also  (or  its  exclusive  use)  Avhich  floAved  through  the 
gate  belonged  to  that  company,  in  entire  disregard  of  the 
presumption  that  the  plaiutiiis  retained  every  right  to  the 
floAv  of  the  stream  Avhicli  Avas  not  affirmatively  shown  to 
have  been  lost.  Thus  a  disputable  presumption  (applicable 
to  the  use  of  the  gate)  Avould  be  made  to  overthroAV  a  pre- 
sumption applicable  to  the  use  of  the  Avater. 

The  defendant  could  not  establish  that  plaintiffs  Avere  estop- 
ped from  asserting  that  they  had  a  right  to  the  flow  of  any 
part  of  the  Avater — either  prima,  facie  or  conclusively— ex- 
cept by  })roving  facts  Avhich  necessarily  precluded  the  reten- 
tion by  plaintiffs  of  any  part  of  it.  The  defendant  could  not 
rely  upon  a  presumption  draAvn  from  facts  Avhich  did  not 
necessarily  exclude  a  retention  by  plaintiff's  of  a  right  to  the 
flow  of  some  of  the  waters,  in  opposition  to  the  legal  prop- 
osition that  plaintifis  had  lost  only  the  right  Avhich  Avas 
afiirmatively  proved  to  have  been  extinguished. 

Of  course,  on  a  retrial  of  this  cause,  the  evidence  may  es- 
tablish an  extinguishment  of  the  plaintiffs'  rights — if  they 
ever  had  an}- — to  the  floAv  of  every  portion  of  the  Avaters  of 
Bueua  Vista  Slough  to  their  lands.  On  this  appeal  Ave  con- 
fine ourselves  to  the  findings  and  testimony  in  the  transcript 
now  here. 


29 


III. 

While  the  arg}iment  ah  inconvenienti  should  Iicive  its  proper 
iveujht  in  ascertaining  ivhat  the  law  is,  there  is  no  '  'Public 
Policy  "  which  can  empower  the  Courts  to  disregard  the 
laiv;  or  because  of  an  asserted  benefit  to  many  persons  (in 
itself  doubtful)  to  overthroiv  the  settled  laiv.  This  Court 
hcts  no  power  to  legislate;  especially  none  to  legislate  in  such 
manner  as  to  deprive  citizens  of  their  vested  rights. 

The  riparian,  owner  s  property  in  the  water  of  a  stream 
may  (on  payment  of  due  compensation  to  him)  be  taken  to 
supply  "farming  neighborhoods  "  with  ivater. 

In  case  further  legislation  shall  be  deemed  expedient  for 
the  distribution  of  loater  to  public  uses  (the  private  right 
being  paid  for)  the  vcdidity  of  such  further  legislation  is  to 
be  determined  after  its  enactment,  if  its  validity  shall  then 
be  questioned. 

The  respondent  contends  that  it  is  entirely  immaterial 
what  errors  were  committed  by  tlie  Court  below  upon  the 
supposition  that  plaintiffs,  as  riparian  proprietors,  have 
some  rights  to  the  flow  of  the  stream  through  tlieir  lands  — 
since  the  plaintiffs  have  in  fact  no  right  to  the  use  of  the 
waters  as  against  the  defendant,  which  has  appropriated 
them  in  accordance  with  the  provisions  of  the  Civil  Code; 
and  this,  notwithstanding  the  btatute  of  1850,  adopting  the 
common  law  as  "the  rule  of  decision,"  and  the  section  of 
the  Civil  Code  providing  that  "the  rights  of  ripariiin  pro- 
prietors are  not  affected  "  by  the  provisions  relating  to  ap- 
propriations of  waters.     (Sec.  1422.)  ' 

This  Court  has  held  that  the  property  of  a  riparian  owner 
in  the  waters  flowing  through  his  land  may,  upon  due  com- 
pensation to  him,  be  condemned  to  the  public  use  by  pro- 
ceedings initiated  by  a  corporation  organized  to  supply  a 
town  with  water.      [St.    Helena.   Co.  v.   Forbes,  62  Cal.,  182.) 

In  the  learned  opinions  of  Justices  Ross  and  Myrick  in 
that  case,  the  right  of  the  riparian  proprietor  to  the  use  of 
the  water  is  designated  "property" — an  "incident  of  prop- 
erty in  the  land  inseparably  annexed  to  the  soil"  as  part  and 
parcel  of  it;  "an  incorporeal  hereditament  app(ii;aining  to 
the  land."  The  main  question  in  the  case  was  whether  the 
Code    provided    for    a    condemnation    of    that  species    of 


30 

property  to  public  uses.     The  question  was  answered  in  the 
affirmative. 

And  it  has  been  held  in  New  York  that  the  taking  of  a 
stream  of  water  (on  due  compensation)  for  the  supply  of  a 
town,  was  a  proper  exercise  of  the  power  of  eminent  do- 
main {Gaychter  V.  Newberru,  2  Johns.  Ch.,  162.)  On  like 
principles  the  same  property  right  may  be  taken  for  any 
public  use.  In  every  case,  however,  the  provisions  of  the 
statute,  as  t  >  the  mode  and  manner  of  conducting  the  con- 
demnation proceedings,  must  be  strictly  pursued.  Private 
property  m.iy  be  taken  or  damaged  for  public  use,  due  com- 
pensation being  mado,  or  paid  into  court.  (Constitution, 
Art.  I,  Sec.  14.)  But  another  provision  of  the  supreme  law 
is  equally  operative:  "No  person  shall  be  deprived  *  *  * 
oi  propert//  without  rf?(e  process  of  law'"  (Art.  1,  Sec.  13.) 
A  legislative  Act  declaring  the  necessity  for  taking  the 
property  for  public  use,  or  the  judgment  of  a  Court  that  the 
necessity  exists,  when  the  statute  puts  the  power  in  a  Court, 
is  "the  law  of  the  land."     (Cooley's  Const.  Lira.,  p.  528.) 

Section  1001  of  the  Civil  Code  provides: 

^'Aiiy  person  may,  without  further  legislation,  acquire 
private  property  for  any  use  specified  in  Section  1238  of 
the  Code  of  Civil  Procedure,  either  by  consent  of  tlie  owner 
or  by  proceedings  had  under  the  provisions  of  Title  VII, 
Part  III,  of  the  Cotlo  of  Civil  Procedure;  and  any  person 
seeking  to  acquire  property  for  any  of  the  uses  mentioned 
in  such  title  'is  an  agent  of  the  State, 'or  a  'person  in  chai'ge 
of  such  use,'  within  the  meaning  of  those  terms  as  used  in 
such  litle.  This  section  sh  ill  be  in  force  from  and  after  the 
4th  day  of  April,  1872."  And  Judge  Cooley  observes  that 
either  a  corporation  or  individual  may  be  made  the  agent 
of  the  State  to  prosecute  proceedings  for  condemnation. 

The  same  writer  says:  "The  question  what  is  a  public  use 
is  always  a  question  of  law.  Deference  will  be  paid  to  the 
legislative  judgment,  as  expressed  in  enactments  providing 
for  the  appropriation  of  property,  but  it  will  not  be  conclu- 
sive." {Id.,  p.  536.  See  also  note.)  With  respect  to  the 
subject  in  hand  the  judgment  of  the  Legislature  of  this  State 
lias  been  expressed.  Among  the  public  uses,  in  behalf  of 
which  the  right  of  eminent  domain  may  be  exercised,  are, 
"canals,  ditches,  flumes,  aqueducts  and  pipes,  for  public 
transi^ortation  and  for  supplying  mines  and  farming  neigh- 
borhoods with  water."     (C.  "C.  P.,  1238.) 

Chancellor  Kent  has  written:  '^  If  the  public  interest  can.  b" 
ill  any  way  promoted  by  the  taking  of  private  property,  it  must 
rest  in  the  wisdom  of  the  Legislature  to  determine  whether 


31 

the  benefit  to  the  public  M'ill  be  of  sufficient  importance  to 
render  it  expedient  for  them  to  exercise  the  right  of  eminent 
domain,  and  to  authorize  an  interference  with  the  private 
rights  of  individuals  for  that  purpose."  (2  Comm.,  840.) 
Upon  this  principle  the  power  has  been  employed  for  many 
objects.  Not  only  the  direct  agents  of  the  government,  but 
indiviouals  and  corporate  bodies,  have  been  authorized  to 
take  private  property  for  the  purpose  of  making  public  high- 
ways, turnpike  roads  and  canals;  of  erecting  and  construct- 
ing wharves  and  basins;  of  establishing  ferries;  of  draining 
swamps  and  marshes,  and  of  bringing  water  to  cities  and 
villages.  In  all  such  cases  the  object  of  the  legislative  grant 
oi  i>owei' is  the  public  he))efit  deiixed  from  the  contemplated 
improvement,  whether  such  improvement  is  to  be  effected 
directl}^  by  the  agents  of  the  government,  or  by  individual 
enterprise.  (Cooley's  Cons.  Lim.,  p.  532;  citing  Chancellor 
Walworth  in  i^eeA-^/^H  v.  Boilroad,  3  Paige  45-73;  and  Wilson 
V.  Blackbird,  2  Pet.,  245.)  With  reference  to  the  phrase  of 
Chancellor  Kent  "where  the  public  interest  can  in  any  way 
be  promoted,"  Cooley  says,  "It  would  not  be  entirely  safe 
to  apply  it  with  much  liberality."  He  adds,  that  that 
private  property  may  not  be  taken  for  objects  which  may 
merely  "tend  to  give  an  aspect  of  beauty,  thrift  and  comfort 
to  the  country,  and  thereby  to  invite  settlement,  increase  the 
value  of  lauds  and  gratify  the  public  taste;  *  *  *  the  com- 
mon law  has  never  sanctioned  an  appropriation  of  property 
based  on  these  considerations  alone;  and  some  further  ele- 
ment must  therefore  be  involved  before  the  appropriation 
can  be  regarded  as  sanctioned  by  our  constitutions.  The 
reason  of  the  case,  and  the  settled  practice  of  free  govern- 
ments must  be  our  guides  in  determining  what  is  and  what  is 
not  a  public  use;  and  that  only  can  be  considered  such  when 
the  government  is  supplying  its  own  needs,  or  is  furnishing 
facilities  for  its  citizens  in  regard  to  those  matters  of  public 
necessity,  convenience  or  welfare,  which,  on  account  of  their 
peculiar  character,  and  the  difficulty —perhaps  impossibility 
— of  making  provision  for  them  otherwise,  it  is  alike  proper, 
useful  and  needful  for  the  government  to  provide." 

Now  the  drinking  of  water  is  everywhere  spoken  of  as  a 
"natural,"  or  at  least  primary  use.  Yet  when  water  is  en- 
tirely ttiken  away  from  the  riparian  proprietor  to  supply  a 
city  or  town — the  use  of  it  has  never  been  limited  to  that 
which  may  be  required  merely  for  the  support  of  the  lives  of 
the  citizens;  but  the  water,  thus  appropriated  to  the  "public 
use,"  may  be  consumed  also  for  lavation,  and  for  all  other 
purposes  to  which  the  element  is  ordinarily  applied ;  as  for 


32 

irrigating  private  plats  or  yards,  and  public  squares  and 
parks;  the  watering  of  the  streets,  etc.  It  would  seem 
utterly  impracticable  to  limit  the  uses  to  which  the  citizens 
or  vilhigers  may  apply  it;  or  to  the  quantity  to  be  used  by 
each,  except  by  reference  to  the  quantity  introduced.  In 
such  cases  the  riparian  proprietor  may  be  deprive  1  of  its 
use  ioY primary  purposes  that  it  may  be  devoted  to  such  as 
have  generally  been  deemed  secondary.  Why  then  may  he 
not  be  deprived  of  the  water  when  the  law-makers  decide 
that  its  application  elsewhere  for  irrigation  is  a  public  use? 

It  is  the  rule  that  where  there  is  any  doubt  whether  the 
use  to  which  the  propert}'  is  proposed  to  be  devoted  is  of  a 
public  or  private  character,  it  is  a  matter  to  be  determined 
by  the  Legislature;  and  the  courts  will  not  undertake  to 
disturb  its  judgment  in  that  regard.  (S.  V.  R.  Co.  v.  Stock- 
ton, 41  Cal.,  147.)  To  this  yielding  to  the  legislative  judg- 
ment there  is  but  one  exception;  that  is  when  the  property 
of  the  citizen  is  taken  or  sought  to  be  taken,  for  a  use  in  no 
sense  public;  or  in  the  language  of  Chancellor  Walworth, 
(5  Paige,  159),  "where  there  is  no  foundation  for  a pretoise 
that  the  public  is  to  be  benefited  thereby."  {Con.  Chan. 
Co.  V.  C.  R.  Co.,  51  Cal.,  269.) 

We  are  not  prepared  to  say  that  the  supply  of  water  to 
"farming  neighborhoods  "  for  irrigation  (and  the  Code  evi- 
dently means  for  irrigation)  may  not  be  for  a  public  use. 
Indeed,  in  view  of  the  climate  and  arid  soil  in  parts  of  the 
State  (for  this  object  climate  and  soil  may  properly  be  con- 
sidered) it  is  safe  to  say  that  the  supply  for  such  use  may 
be  that  which  the  Legislature  has  decided  it  to  be — a  public 
use.  The  judgment  of  the  Legislature  that  it  is  such  ought 
not,  therefore,  to  be  disturbed  by  the  courts. 

It  is  apparent  that  in  deciding  whether  a  use  was  public 
the  Legislature  was  not  limited  by  the  mere  nnniher  of  per- 
sons to  be  immediately  benefited  as  opposed  to  those  from 
whom  property  is  to  be  t;iken.  It  must  happen  that  a  pub- 
lic use  (as  of  a  particular  wagon  or  railroad)  will  rarelj^  be 
directly  enjoyed  by  all  the  denizens  of  the  State,  or  of  a 
county  or  city;  and  rarely  that  all  within  the  smallest  politi- 
cal subdivision  can,  as  a  fact,  immediately  enjoy  ever}'  pub- 
lic use.  Nor  need  the  enjoyment  of  a  public  use  be  uncon- 
ditional. A  citizen  of  a  municipality  to  which  water  has 
been  brought,  by  a  person  or  corporation,  which,  as  agent 
of  the  government,  has  exercised  the  power  of  eminent  do- 
main, can  demand  water  only  on  paj'ment  of  the  established 
rate,  and  on  compliance  with  reasonable  rule-  and  regula- 
tions. 


33 

While  the  Court  will  bold  the  use  private  where  it  appears 
that  the  government  or  public  camiothave  any  interest  in  it, 
the  Legislature,  in  determining  the  expedieucj  of  declaring 
a  use  public,  may  no  doubt  properly  take  into  consideration 
all  the  advantages  to  follow  from  such  action;  as  the  ad- 
vancement of  agriculture,  the  eu'-onragment  of  mining  and 
the  arts,  and  the  general  though  indirect  benefits  derived 
to  the  people  at  large  from  the  dedication. 

It  may  be  that,  under  the  pln'sical  t-ouditions  existing  in 
some  portions  of  the  State,  irrigation  is  not,  theoretically, 
a  "natural  want" — in  the  sense  that  living  creatures  cannot 
exist  without  it.  But  its  impoitance  as  a  means  of  produc- 
ing food  from  I  he  soil  makes  it  less  necessary,  in  a  scarv-ely 
appreciable  degree,  from  the  use  of  water  by  drinking  it. 
The  government  would  seem  to  have  not  only  a  distant  and 
consequential,  but  a  direct  interest  in  the  use;  therefore  a 
public  use. 

The  words  "farming  neighborhoods"  are  somewhat  in- 
definite ;  the  idea  sought  to  be  conveyed  by  them  is  more 
readily  conceived  than  put  into  accurate  language.  Of  course 
"  farming  neighborliood  "  implies  more  than  one  farm  ;  but 
it  wouhl  be  difficult  to  say  that  any  certain  number  is  essen- 
tial to  constitute  such  a  neighborhood.  The  vicinage  may 
be  nearer  or  more  distant,  reference  being  had  to  the  popn- 
lousness  or  spareness  of  population  of  the  surrounding 
country  ;  but  the  farmers  must  be  so  near  to  each  other — 
relatively  to  the  surrounding  settlers — as  to  make  what  in 
popular  parlance  is  known  as  a  "farming  neighborhood.'* 

A  very  exact  definition  of  the  word  is  not,  however,  of 
paramount  importance.  The  main  purpose  of  the  statutes 
is  to  provide  a  mode  by  which  the  State,  or  its  agent,  may 
conduct  water  to  arable  lands  where  irrigation  is  a  necessity, 
on  payment  of  due  compensation  to  those  from  whom  the 
water  is  diverted, 

The  same  agent  of  the  State  may  take  water  to  more  than 
one  farming  neighborhood. 

It  must  always  be  borne  in  mind  that  under  the  Codes  no 
man  (or  set  of  men),  can  take  another's  property  for  his  own 
exclusive  use. 

Whoever  attempts  to  condemn  the  private  right  must  be 
prepared  to  furnish  (to  the  extent  of  the  water  he  cousum-^s 
and  pays  for),  every  individual  of  the  community  or  com- 
munities, farming  neighborhood  or  farming  neighborh  )ods, 
to  which  he  conducts  it,  the  consumers  being  required  to 
pay  reasonable  rates  and  being  subjected  to  reasonable 
regulations.     And  whether  the  quantity  sought   to  be  con- 


34 

demued  is  reasonably  uecessury  to  supply  the  public  use  in 
a  neigbborliood  or  iieigliborlioods,  must  be  determined  by 
tlie  court  in  which  tlie  proceedings  are  brought  for  condem- 
nation of  the  private  right. 

lu  proceedings  brought  to  secure  the  appropriation  of 
private  property  to  a  public  use,  as  in  all  other  legal  pro- 
ceedings, a  pretense  cannot  be  set  up  as  a  fact — a  shcun  for 
a  reality.  The  facts,  it  must  be  presumed,  will  always  be 
fairly  determined  in  such  particular  case. 

Of  course,  in  each  case,  the  question  whether  the  use  to 
which  by  statute  the  water  is  to  be  devoted  is  a  public  use, 
is  a  judical  question  ;  but  the  lule  is  that  the  courts  hold  it 
to  be  such  whenever  the  Legislature  has  declared  it  to  be 
public,  unless  it  clearly  appears  that  it  is  only  private,  and 
that  the  attempt  to  take  it  is  therefors  a  violation  of  the 
Constitution.  From  what  is  said  above  no  inference  is  to 
be  drawn  as  to  the  exact  limits,  in  every  respect,  of  the  legis- 
lative power  to  declare  a  use  public.  We  are  only  called 
on  to  sav  that  sections  of  the  Codes  which  provide  for  tak- 
ing water  from  riparian  proprietors  (on  due  compensation) 
to  supply  "farming  neighborhoods"  are  constitutional  and 
valid.  Whether,  in  any  supposable  instance,  the  public  has 
such  interest  in  a  use,  which  can  be  directly  enjoyed  only 
by  an  individual  for  his  profit,  and  without  any  concomitant 
duty  from  him  to  the  public,  as  that  the  government  may  be 
justified  in  employing  the  eminent-domain  power  for  the 
use — as  for  a  public  use — is  a  question  somewhat  startling, 
but  Avhich  is  not  involved  in  the  decision  of  (he  present 
action.  In  case  further  legislation  shall  be  deemed  ex- 
pedient lor  the  distribution  of  waters  to  public  uses,  we 
leave  its  validity  to  be  determined  after  its  enactment,  if  its 
invalidity  shall  then  be  asserted. 

The  Civil  Code  authorir-ies  any  person,  for  purposes  use- 
ful to  himself  alone  or  for  the  benefit  of  himself  and  others, 
to  divert  the  waters  of  a  stream,  the  rights  of  riparian  pro- 
prietors not  being  affected. 

The  claim  of  respondent  is  that,  under  the  [)rovisions  of 
the  Code,  any  person  may  divert  all  the  waters  of  a  stream 
from  the  lower  lands,  conduct  them  to  a  distant  place  beyond 
the  watershed,  and  whatever  the  additional  loss  b}'  seepage 
and  evaporation  caused  by  a  change  of  the  channel,  apply 
them  either  to  his  own  purposes  or  sell  them  to  others,  the 
only  conditions  being  that  he  shall  appropriate  ihem  in  the 
manner  prescribed  by  the  Code,  and  that  they  shall  be  used 
for  an  object  beneficial  to  somebod3^      (C.  C,  1411.) 

It  may  be  intimated  that  the  Court   should  avoid  too  nar- 


35 

row  a  view  of  tlje  important  question  involved.  It  may  be 
suggested  that  Judges  m  this  State  should  rise  to  the  ap- 
preciation of  the  fact  that  the  physical  condiiions  here  ex- 
isting require  an  "appropriator"  to  beauthorized  to  deprive, 
without  indemnification,  all  the  lower  riparian  proprietors, 
however  numerous,  on  the  course  of  an  innavigable  stream, 
of  every  natural  advantage  conferred  on  their  lands  by  the 
running  water.  A  "public  policy"  has  been  appealed  to 
which  has  not  found  its  expression  in  the  statutes  of  the 
State,  but  rests  apparently  on  the  political  maxim,  "the 
greatest  good  to  the  greatest  number;"  on  the  claim  that  by 
permitting  such  deprivation  of  the  enjoyment  of  the  stream 
by  the  riparian  proprietors  more  persons,  or  a  larger  extent 
of  territor}^,  will  be  benefited  by  the  waters.  The  proposi- 
tion is  simply  that,  by  imperative  necessity,  the  right  to  take 
or  appropriate  water  should  be  held  paramount  to  every  other 
right  with  which  it  may  come  in  contact. 

But  the  policy  of  the  State  is  not  created  by  the  judicial 
department,  although  the  judicial  department  may  be  called 
upon  at  times  to  declare  it;  it  can  be  ascertained  only  by 
reference  to  the  Constitution  and  laws  passed  under  it,  or 
(which  is  the  same  thing")  to  the  principles  underlying  and 
recognized  by  the  Constitution  and  laws. 

The  contest  here  is  between  persons  who,  as  in  every 
other  litigation,  may  be  said  indirectly  to  represent  oilier 
persons  or  classes  of  persons  having  interests  like  those  of 
the  respective  parties,  since  the  decision  in  this  case  may 
establish  a  rule  which  shall  determine  the  rights  of  other 
persons  holding  positions,  relatively  to  each  other,  like 
those  of  the  plaintiffs  and  defendant  herein.  Even  if  the 
greater  number  whom  it  is  assiiniecl  will  be  benefited  by 
making  the  interests  of  non-riparian  takers  or  appropriators 
paramount,  shall  also  be  assumed  to  constitute  "the  pub- 
lic"— w^hile  riparian  proprietors,  however  numerous,  shall 
be  treated  merely  as  individuals  having  interests  adverse  to 
the  public  —this  consideration,  if  it  should  ever  have  weight 
with  judicial  tribunals,  should  have  weight  only  in  very 
doubtful  cases.  As  was  said  by  Lewds,  V.  J.,  in  Vansickle 
V.  Haines:  "That  the  interests  of  the  public  should  receive 
a  more  favorable  consideration  than  those  of  any  individual, 
or  that  the  legal  rights  of  the  humblest  person  in  the  State 
should  be  sacrificed  to  the  weal  of  the  many,  is  a  doctrine 
which  it  is  to  be  hoped  will  never  receive  sanction  from  the 
tribunals  of  this  countiy.  The  public  is  in  nothing  more 
interested  than  in  scrupulously  protecting  each  individual 
citizen  in  every  right  guaranteed  to  him  by  the  law,  and  in 


36 

sacrificing  none,  not  even  the  most  trivial,  to  further  its  own 
interests."     (7  Nevada,  259.) 

If  the  law  is  settled,  we  cannot  override  the  established 
rule  to  secure  some  conjectural  advantage  to  a  greater  num- 
ber. If,  however,  we  were  permitted  to  do  this  the  inquiry 
would  still  remain  whether  the  recognition  of  a  doctrine  of 
appropriation  (such  as  is  contended  for  by  respondent) 
would  secure  the  greatest  good  to  the  greatest  number. 
Observe,  if  that  be  the  true  rule,  the  appropriator  does  not 
necessarily  act  as  the  agent  of  the  State  employing  the 
power  of  eminent  domain  for  the  benefit  of  the  public,  but 
by  his  appropriation  makes  the  running  water  his  own,  sub- 
ject only  to  the  trust  that  he  shall  employ  it  foi  some  useful 
purpose.  It  would  hardly  be  contended  that  while  he  con- 
tinues to  use  it  for  a  useful  purpose,  a  statute  would  be 
valid  which  should  take  it  from  him,  without  indemnifica- 
tion, under  a  pretext  of  regulating  the  "common  use"  of 
the  water  more  profitably,  or  of  providing  for  its  distribu- 
tion so  as  to  benefit  a  greater  nuoiber  of  persons.  He 
would  have  a  vested  right  to  the  use  of  the  water,  although 
the  riparian  proprietors  Avould  have  none.  If,  indeed,  one 
who  has  appropriated  the  water  of  a  stream  since  the  adop- 
tion of  tije  present  Constitution  has  appropriated  it '  'for  sale, 
rental  or  distribution"  to  others,  the  rates  he  may  charge 
consumers  must  bo  fixed  by  local  authority.  (Const.,  Art. 
XIY,  Sec.  1.)  But  if  he  shall  consume  the  water  himself, 
one  may  thus,  for  his  own  benefit,  arbitrarily  deprive  many 
of  an  advantage  which,  whether  technicalh'  private  property 
or  not,  is  of  great  value,  and  thus  secure  to  himself  that 
which,  by  every  definition,  is  a  species  of  private  proi)ertv 
i))  him.  Riparian  lands  are  irrigated  naturally  by  the 
waters  percolating  through  the  soil  and  dissolving  its  fertil- 
izing properties.  This  is  sufficiently  apparent  from  the 
consequences  wliich  ordinarily  follow  from  a  continual  ces- 
sation of  the  flow  of  a  stream.  If,  in  accordance  with  the  law, 
such  lands  may  be  deprived  of  the  natural  irrigation,  with- 
out compensation  to  the  owners,  we  must  so  hold;  but  we 
fail  to  (lis  over  the  principles  of  "public  policy"  which  are  of 
themselves  of  paramount  authority  and  demand  that  the  law 
shall  be  so  declared. 

In  our  opinion  it  doos  not  require  a  prophetic  vision  to 
anticipate  that  the  adoption  of  the  rule,  so-called,  of  "  ap- 
propriation "  would  result  in  time  in  a  monopoly  of  all  the 
waters  of  the  State  by  comparatively  few  individuals,  or 
combination  of  individuals,  controlling  aggregated  capital, 
who  could  either  apply  the   water   to  purposes    useful   to 


37 

themselves,  or  sell  it  to  "  those  from  whom  they  had  taken 
it  away,"  as  well  as  to  others.  Whether  the  fact  that  the 
power  of  fixinj^  rates  would  be  in  the  Supervisors,  etc., 
would  be  a  sufficient  guarantee  against  overcharges,  would 
remain  to  be  tested  b}'  experience.  Whatever  the  rule  la  d 
down,  a  monopoly  or  concentration  of  the  waters  in  a  few 
hands,  may  occur  in  the  future.  But  surely  it  is  not  requir- 
ing too  much  to  demand  that  the  owners  of  lands  shall  be 
compensated  for  the  natural  advantages  of  which  they  are 
to  be  deprived. 

It  is  admitted  that  a  single  riparian  proprietor  would 
stand  on  the  same  footing  as  one  not  such.  But  the  con- 
cession would  still  leave  the  rule  in  force,  "first  come,  first 
served." 

It  has  been  assumed  that  there  is  no  medium  between  the 
rule  contended  for  and  what  has  been  said  to  he  tin;  rule  of 
the  common  hiw,  which  recpiires  that  the  stream  shall  flow 
"undiminished  in  quantity"  past  the  lands  of  all  the  riparian 
proprietors.  And  it  has  sometimes  been  gravely  argued 
that,  unless  the  doctrine  of  appropriation  shall  prevail,  the 
owner  of  lands  near  the  mouth  of  a  stream  may  not  only 
fail  to  use  the  waters  himself,  but  will  have  power  to  refuse 
to  permit  any  other  person  to  employ  them. 

We  have  already  said  that  the  right  to  the  water  of  the 
riparian  proprietor  may  be  taken  for  a  public  use,  on  due 
compensation  to  such  proprietor.  And  it  will  be  noted 
(since  the  defendant  is  not  a  riparian  proprietor,  unless 
made  such  by  the  mere  fact  of  its  appropriation),  that  tiie 
exigencies  of  the  present  case  do  not  imperatively  demand 
that  we  shall  liere  determine  the  respective  rights  of  riparian 
owners  as  between  themselves.  But  even  if  the  defendant 
is  to  be  treated  as  a  riparian  proprietor  with  reference  to 
the  specific  tract  in  which  is  the  head  of  its  canal,  we  enter- 
tain no  doubt,  upon  principles  of  the  common  law,  as  ap- 
plied to  the  conditions  here  existing,  that  each  riparian 
proprietor  is  entitled  to  a  reasonable  use  of  the  water  for 
irrigation.  This  statement  has  its  bearing  on  the  alleged 
public  policy,  which,  it  is  claimed,  should  control  when 
the  alternative  is  presented  between  "appropriation"'  and 
the  non-use  for  irrigation,  or  like  purposes,  by  any  person. 
What  is  a  reasonable  use  by  a  riparian  occupant — reference 
being  had  to  the  use  required  by  the  others— must  depend 
upon  the  circumstances  of  each  particular  case.  This  cause 
was  not  tried  on  the  theory  that  defendant  was  a  riparian 
owner.  There  is  no  pretense  that  the  water  diverted  was 
necessary  for,  or  was  used  for,  the  reasonable  irrigation  of 
the  specific  tract  at  the  head  of  defendant's  canal. 


38 

Couusel  do  not  seem  to  agree  as  to  the  natnve  and  per- 
vading force  of  the  "public  policy"  relied  on.  While,  on 
the  other  hand,  it  has  been  suggested  that  policy  demands 
the  recognition  of  the  doctrine  of  "appropriation,"  so- 
called  (a  doctrine  which  would  give  to  the  prior  appropriator 
the  right  to  divert,  without  compensation,  all  the  waters 
flowing  to  inferior  riparian  owners),  throughout  the  State; 
counsel  appearing  as  cnuici  cnrice.  urge  that  different  public 
policies  obtain  in  different  portions  of  the  State.  In  view 
of  this  assumed  fact,  it  is  said,  it  should  be  held  that  the 
streams  in  the  more  arid  portions  of  California  may  be  en- 
tirely diverted  by  the  prior  appropriator,  as  against  those 
below,  and  that  the  common-law  rights  of  riparinn  pro- 
prietors should  prevail  in  the  regions  in  which  the  climate 
more  nearly  resembles  that  of  other  States  where  the  com- 
mon-hiw  rule  is  enforced.  The  aridity  of  the  soil  and  air 
being  made  the  test,  the  greater  the  aridity  the  greater  the 
injur}^  done  to  the  riparian  proprietors  belosv  by  the  entire 
diversion  of  the  stream,  and  the  greater  the  need  of  the 
riparian  proprietor  the  stronger  the  reason  for  depriving 
him  of  tlie  water.  It  would  hardly  be  a  satisfactory  reason 
for  depriving  riparian  lands  of  all  benefit  from  the  flow, 
that  they  wouUl  thereby  become  entirely  unfit  for  cultiva- 
tion or  pasturage,  while  much  of  the  water  diverted  must 
necessarily  be  dissipated.  No  precise  line  of  separation 
between  the  regions  so  characterized  is  pointed  out,  and  the 
attempted  classification  is  itself  somewhat  uncertain  and  in- 
definite. It  w^ould  seem  tiiat  there  could  be  no  doubt  that 
the  law,  derived/roiii  the  scnne  sinirces,  is  the  same  everywhere 
in  California.  Were  the  theory  of  counsel  accepted,  would 
the  courts  take  judicial  notice  of  the  physical  conditions,  in 
an  undefined  district,  which  would  compel  the  adoption  of 
one  rule  rather  than  the  other?  Or  would  the  matter  be 
submitted  to  the  trial  court  or  a  jury  upon  evidence  to  be  de- 
termined as  a  question  of  fact'?  If  the  theory  were  ac- 
cepted, parties  to  a  litigation  would  be  subjected  to  one  or 
another  law,  as  it  might  be  deemed  by  court  or  jury,  in  the 
particular  case,  that  it  was  for  the  interest  of  the  neigh- 
borhood (or  large  "region,"  as  the  case  might  be)  that  the 
rights  of  the  parties  should  be  settled  by  one  law  or  the 
other.  Perha;is,  too,  the  law  with  res[iect  to  appropriators 
and  bank-ow^ners  on  the  same  stream  would  vary  with  the 
changing  seasons.  And  if  the  issue  as  to  the  applicability 
of  one  law  or  another  were  submitted  as  a  question  of  fact, 
two  different  laws  might  obtain  and  determine  the  rights  of 
parties  in   different  suits,    as   the   evidence    adduced   with 


39 

respect  to  physical  conJitious  of  the  "region,''  should  briug 
home  to  the  nnnds  of  the  triers  one  conviction  or  another. 
Certainly,  a  judgment  in  a  particular  case  (if  the  question 
would  be  one  of  fact)  would  not  be  binding  upon  all  the 
residents  of  the  region,  nor  determine  what  law  prevailed 
therein.  We  can  conceive  of  no  "  public  policy"  Avhich 
should  compel  us  to  abandon  the  rights  of  the  citizen  to  the 
whim  or  caprice,  or  to  the  deliberate  and  honest  judgment 
of  the  arbiter  in  each  separate  case.  Whatever  is  the  gen- 
eral law  bearing  on  the  subject  it  is  the  same  everywhere 
within  the  limits  of  the  State.  It  is  for  the  court  to  applj', 
or  to  direct  a  jury  to  apply,  the  appropriate  rule  to  the 
facts  proved  by  the  evidence  bearing  upon  tbe  issues  made 
by  the  pleadings,  but  neither  court  nor  jury  can  say  that  it 
is  expedient  to  declare  that  a  law  shall  bo  operative  in  one 
portion  of  the  State  which  differs  from  the  law  in  other 
portions,  or  to  decide  that  there  is  no  general  law  bearing 
on  the  subject. 

JF. 

By  the  law  of  3Iexico  the  running  waters  of  California  loere 
not  dedicated  to  the  common  use  of  all  the  inhabitants,  i)i 
such  sense  that  they  could  not  he  deprived  of  the  common 
use. 

We  have  been  warned  lest  in  approaching  the  subject  we 
shall  assume  that,  in  the  very  nature  of  things,  running  waters 
are  inseparably  connected  with  the  riparian  lands.  It  may 
be  conceded  that  if  riparian  owners  have  any  right  in  the 
waters  (or  in  the  lands  themselves)  it  is  such  as  is  created 
or  recognized  by  the  law  of  the  land.  It  is  at  least  equallj^ 
true,  however,  that  every  inhabitant  of  a  State  or  district 
does  not  possess  a  potential  right,  inherent  in  his  habitancy, 
to  divert  so  much  of  the  waters  of  a  stream  as  he  may  have 
occasion  to  employ.  The  whole  matter  depends  upon  the 
law  of  the  country,  written  or  unwritten. 

Counsel  for  respondent  announce  the  proposition:  "The 
fundamental  principle  upon  which  all  the  laws  of  the  former 
governments  of  this  territory  upon  this  subject  (waters  and 
their  uses)  were  based,  will  be  found  to  be  that  the  flowing 
waters  of  the  streams'and  rivers  of  the  country  ivere  dedi- 
cated to  the  common  use  of  the  inhabitants,  subject  to  that  legis- 
lative control  which  is  the  equivalent  of  the  exercise  of  that 
legislative  power  which  we  know  as  the  police  power  of  the 
State." 


40 

We  understand  this  to  mean  that  "the  inhabitants"  of 
the  territory,  or,  at  least,  the  occupants  of  h\nds  in  each 
valley  or  water-shed  capable  of  irrigation  from  a  stream 
flowing  in  it,  had,  under  the  Mexican  law,  a  vested  interest 
in  the  common  use  fur  irrigation  and  like  purposes  to  which 
the  waters  were  "dedicated,"  w^hich  could  not  be  taken 
away  by  the  legislative  power.  That  the  dedication  con- 
tinues to  the  present  hour;  that  the  JState  of  California  has 
no  power  to  restrict  the  use  to  riparian  proprietors;  that  the 
statute  of  1850,  adopting  the  common  law  "  as  the  rule  of 
decision,"  is  not  to  be  construed  as  an  attempt  so  to  restrict 
the  use,  and,  if  it  must  be  thus  construed,  it  is  invalid  to 
that  extent,  since  the  power  of  the  State  is  limited  to  the 
mere  regulation  of  the  common  use. 

In  support  of  the  proposition  above  recited,  counsel  refer 
to  New  Orleans  v.   2he  United  Slates.     (10  Peters,  662.) 

In  the  year  1717  a  charter  was  issued  by  the  King  of 
France  to  a  corporation,  styled  the  Western  Company, 
whereby  were  granted  to  the  company  the  lands,  coasts,  har- 
bors and  islands  in  Louisiana.  Under  its  auspices  the 
ground  where  the  city  of  New  Orleans  now  stands  was  se- 
lected as  the  place  of  the  principal  settlement  of  the  prov- 
ince. In  172i  and  1728  maps  of  the  town  were  made,  on 
which  a  space  on  the  margin  of  the  Mississippi  was  desig- 
nated as  a  qiniii.  This  space  was  continually  used  for  the 
purposes  to  which  it  was  devoted.  These,  with  other  cir- 
cumstances, w^ere  held  jjrorf  of  a  dedication  to  the  public, 
in  New  Orleans  v  The  United  States.  The  case  is  in  accord 
with  established  principles  both  of  the  civil  and  common 
law. 

It  ma}'  be  conceded  that  when,  under  the  former  govern- 
ment property  was  dedicated  to  the  public  use,  either  by  a 
private  person  or  the  nation,  the  people  comprising  the  pub- 
lic and  their  successors  acquired  a  vested  interest  of  which 
they  cannot  arbitrarily  be  deprived — to  the  extent  of  the 
common  use  to  which  the  property  was  dedicated.  But  it 
would  seem  to  be  difficult  to  derive  the  right  to  the  exclu- 
sive use  of  the  whole  or  portions  of  the  waters  of  a  stream 
from  their  dedication  to  the  common  use  of  all.  We  shall 
see  that  the  laws  of  Mexico  authorized  the  diversion  of  wa- 
ters for  the  exclusive  benefit  of  corporations  and  individu- 
als, under  some  circumstances.  The  jirovisions  of  our  Civil 
Code  authorize  such  diversions  for  exclusive  use.  It  cannot 
be  successfully  argued  that  laws  authorizing  such  exclusive 
appropriations  are  less  an  infringement  of  the  ' '  common 
use  "  to  which  rivers  were  devoted  than  a  law  limiting  the 
use  of  the  waters  to  riparian  proprietors. 


41 

And  this  leads  to  an  inquiry  as  to  the  nature  of  the  com- 
mon use  of  running  waters  under  the  Mexican  law. 

In  the  Institutes  of  Justinian  it  is  deckired  concerning 
thin'/s:  "They  are  the  propert}'  of  some  one  or  no  one." 
("Vel  in  nostro  patrimonio  vel  extra  nostrum  patrimonium.") 
"Some  are,  by  natural  right,  common  to  all  ;  some  are  pub- 
lic ;  some  are  of  corporate  bodies  (cities — municipal)  ;  and 
some  belong  to  no  one.  Many  are  the  property  of  individ- 
uals, acquired  in  divers  ways,"  etc.  (Lib.  2  tit.  1.)  The 
things,  which  by  natural  law  are  common  to  all,  are  these: 
air,  running  water  (agua  proflneus),  the  sea,  and  as  a  con- 
sequence, the  shores  of  the  sea."  (Id.,  8ec.  1.)  "Flumina 
autem  omnia  et  portus  publicasunt.''  (Sec.  2  )  The  Eoman 
law  distinguished  between  res-communes  and  res-publicae. 
The  sea  was  included  amongst  the  former,  the  rivers 
amongst  the  latter.  (Halleck  Inter.  L.,  p.  147;  notes.)  h.\\ 
perennial  rivers  were  public.  (Dig-  4-^,  12,  3.)  Such  rivers 
were  of  the  class  of  things  "publico  usui  destinatae"  like 
ports  and  roads.     (Mojle's  Ed.   Insts.,  p.  181;  n.) 

The  same  distinction  is  recognized  by  Spanish  writers. 
"Bienes  coraunes"  being  those  which,  not  being  as  to  prop- 
erty of  an3%  pertain  to  all  as  to  their  use — as  the  air,  rain, 
waier,  the  sea  an  1  its  beaches;  "bienes  pubJicos"  those 
which,  as  to  propertj',  pertain  to  a  people  or  nation,  and  as 
to  their  use,  to  all  the  individuals  of  the  territory  (or  dis- 
trict) such  as  rivers,  shores,  ports  and  public  roads.  (Es- 
criche.  See  also  the  word  "Cosa.")  In  Febrero  Novisimo 
cosas  conianes  are  defined  as  those  "qui  sirven  a  los  hombres 
y  demas  vivientes,  coino  el  aire,  cl  agua  Uovedizci,  el  mar  y 
sus  riberas."  (T.  1,  lib,  2,  tit.  1.)  Both  writers  cite  law  3, 
tit.  28,  Part  3.  In  Hall's  version  of  the  law  referred  to  there 
are  included  in  the  things  belonging,  as  to  property,  to 
none,  and  as  to  use  to  all  living  creatures,  "air,  rain,  icater, 
the  sea  and  its  shores."  (Hall's  Mex.  Law,  -I-IT.)  This  is 
probably  a  mistake  of  the  printer.  The  words  of  the  law 
are  "el  ayre,  e  el  mare  elas  aguas  de  la  Uuvia.'  Lord  Den- 
man  remarks  that  Fleta  enumerating  res-communes,  (miits 
"agua  prolluens."     (Jilason  v.  Hill,  5  B.  and  A  ,  23.) 

By  the  Mexican  law  the  property  in  rivers  pertained  to  the 
nation,  the  use  to  the  inhabitants.  The  nature  of  this  use 
will  be  considered  hereafter. 

The  modern  doctrine  as  to  the  sea-shores,  even  in  coun- 
tries where  the  civil  law  prevails,  seems  to  be  that  they  be- 
long to  the  State.  {Pollard's  lessee  v.  Hogan,  3  How.  U.  S., 
212  )  It  has  been  suggested  that  the  claim  of  ownership  by 
the  English  crown  to    the  ocean   beaches  is  the  remnant  of 


42 

the  broader  claim  once  asserted  to  the  narrow  seas  adjoin- 
ing the  British  islands.  (Angell  on  Water-courses.)  But  the 
modern  doctrine  which  attaches  to  the  sovereignty  the  prop- 
erty in  the  sea-shores  seems  to  be  derived  from  Celsus. 
(Dig.  4,  3,  8,  3.  Moyle"s  Lists.,  p.  183.)  By  the  Mexican 
laws  the  shores  of  the  sea  include  the  space  covered  by  the 
flux  aud  reflux  of  the  waters  at  their  greatest  altitude, 
whether  in  winter  or  summer.  Escriche  calls  the  ijloya  "la 
ribera  del  mar,"  and  remarks:  "The  laws  of  the  Partidas 
place  the  playa  amongst  the  common  things  which  all  men 
can  use,  but  it  cannot  be  intended  to  ti'eat  it  as  independent 
of  the  nation  to  which  it  may  pertain."  And  under  the  head 
"ribera"  he  says:  "The  shores  of  the  sea  pertain  as  to 
property  to  the  nation  of  whose  territury  they  are  a  part, 
and  as  to  use  to  all,"  etc.  It  is  unnecessary,  however,  here 
to  declare  whether  by  the  Mexican  law  the  ocean  beaches 
were  proprietas  mullius,  or  pertained  as  to  property  to  the 
nation. 

Whatever  the  common  use  to  wliich  rivers,  harbors  and 
public  roads  were  subjected  the  enjoyment  of  such  use 
would  exclude  the  notion  of  an  exclusive  use  or  occupation 
which  must  interfere  with  a  like  use  by  others.  "Com- 
munis omnium  est  harum  rerum  usus  ad  quem  natura  com- 
paratae  sunt,  tum  siquid  earum  rerum  per  naturam  occupari 
potest,  id  eaten  us  occupantis  flt,  quatenus  ea  occupatione 
usus  ille  promiscuus  non  laeditur."'  The  common  use  of 
rivers  would  seem  to  be  such  as  all  could  enjoy  who  had 
access  to  them  «s  risers.  Vinnius  says:  "Uuicuique  licet 
in  flumine  publico  navigare  et  piscari,"  and  adds,  with  re- 
spect to  running  water  generally,  "Aqua  profluens  ad  lavan- 
dutii  et potanduiit  unicuique  jure  naturali  concessa.  (Cited 
by  Lord  Denman  in  jVaso)!  v.  Hill,  5  Barnew  all  and  Adol- 
phus,  1.)  In  Blamii  v.  Hill,  the  learned  Judge  speaks  of  a 
distinction  mentioned  by  the  civilians  between  a  river  and 
its  waters;  the  former  being  as  it  were  a  perpetual  body, 
and  under  the  dominion  of  those  in  whose  territor}' it  is  con- 
tained; the  latter  continually  changing  and  incapable, 
"whilst  it  is  there,"  of  becoming  the  subject  of  property. 
He  adds:  "It  seems  that  the  Eoman  law  considered  running 
water  not  as  a  bonum  vacans  in  which  any  might  acquire  a 
property,  but  as  public  or  common,  in  this  sense  only,  that 
all  might  drink  it  or  apply  it  to  the  necessary  purposes  of 
supporting  life;  and  that  no  one  had  any  property  in  the 
water  itself,  except  in  that  particular  portion  which  he  might 
have  abstracted  from  the  stream  and  of  which  he  had  the 
possession,  and  during  the  time  of  such  possession  only." 


43 

The  common  use  of  the  waters,  it  would  seem,  existed 
only  while  they  continued  to  flow  iu,  and  constituted  a  por- 
tion of  the  river.  But  under  the  Mexican  law  an  exclusive 
use  of  parts  or  the  whole  of  the  waters  of  a  river  might  be 
legally  acquired  by  individuals. 

The  oceans  "proi)ter  immensitatem"  may  be  used  to  their 
fullest  benefit  without  any  exclusive  appropriation,  and 
such  appropriation  is  not  necessary  for  the  purposes  of  so- 
ciety or  of  advantage  to  mankind.  "'Moreover,  the  use  of  the 
sea  may  be  said  to  be  matter  of  necessity  to  all  those  na- 
tions who  have  anj'  jjart  of  their  territories  bounded  by  it; 
and  as  no  nation  can  possibly  assert  that  it  is  unable  to  en- 
joy the  fullest  use  of  the  sea  without  the  exclusion  of  others, 
so  no  nation  can  have  any  just  ground  for  excluding  others 
from  an  advantage  which  all  may  enjoy,  together  with  equal- 
ly full  utility  to  each.  This  legal  doctrine  is  thus  admirably 
summed  up  by  a  German  civilian:  'The  great  sea  is  a 
thing,  the  use  of  which  is  inexhaustible,  consequently,  as  no 
one  can  acquire  the  dominion  of  things,  the  utility  of  which 
is  unbounded  and  inexhaustible,  no  one  (even  were  it  possi- 
ble in  fact)  can  subject  the  great  sea  to  his  dominion  with- 
out violating  natural  law.  And  the  same  must  be  under- 
stood of  several  nations,  wh(^  cannot,  for  the  same  reasons, 
divide  the  dominion  of  the  great  seas  among  them.  Conse- 
quently no  nation  can,  without  infringement  of  natural  law, 
subject  to  its  dominion  the  great  sea.'  "  (Boyer's  Com.  on 
the  Modern  Civil  Law.  p.  64;  citing  the  Pandects,  Grotius, 
Pufendorf,  Bynkershock,  Wolf's  Jus.:  Gent.) 

The  same  writer  says:  "Both  Grotius  and  Pufendorf  de- 
duce the  appropriation  of  things  which  must  probably  have 
been  common  to  all  men,  from  the  very  constitution  and 
organic  rules  and  necessities  of  the  social  state,  as  well  as 
from  the  objects  for  the  furtherance  of  which  that  state  is 
intended.  But  it  follows  from  the  same  principles  that 
those  things,  the  exclusive  appropriation  of  which,  cither  to 
a  portion  of  mankind  or  to  certain  individuals  and  purposes, 
is  unnecessary  for  the  objects  of  the  social  state  (that  is  for 
the  furtherance  of  the  welfare  of  mankind)  must  remain  by 
natural  law  common  to  all  men.  Thus  air  and  light  cannot 
be  brought  under  the  power  of  any  one  person." 

"Upon  these  principles  running  waters  are  held  by  the 
Roman  jaris-consulti  to  be  common  to  all  men.  But  it  also 
follows  that  this  decision  does  not  apply  to  waters,  the  ap- 
propriation of  which  (to  the  exclusion  of  the  common  enjoy- 
ment) is  necessary  for  a  certain  purpose,  as  water  included 
in    a   pipe    or   other  vessel  for  certain  uses.     The  common 


a 

right  to  the  use  of  running  water  therefore  applies  only  to 
those  cases  where  the  quantity  of  water  is  so  great  that  its 
entire  exchisive  appropriation  is  not  necessar\,  having  re- 
gard to  the  general  objects  of  the  institution  of  property. 
Gro.  Droit  de  hi  Guerre,  Puf.  Droit  de  hi  Nature."  (Bow- 
yer,  p.  61.)  "  Thus  running  water  is  capable,  indeed,  of  a 
qualified  appropriation  as  property,  but  subject  to  a  common 
right  by  natural  law  where  it  is  cajmble  of  being  f'lUt/  enjoyed 
iritJiout  exclusire possession.'"     (Id.  i3.  62) 

Viunius,  in  his  commentary  on  the  institution  above  re- 
ferred to,  says  these  things  are  common  which  by  nature  are 
devoted  to  the  use  of  all,  and  which  in  "nullius  adhuc  diti- 
onem  aut  dominium  perveneruut,"  which  seems  to  imply 
that  some  things  hitherto  common  may  become  the  property 
of  an  individual. 

And  this  is  true  with  reference  to  things  the  ultimate 
property  of  which  is  in  the  State,  the  use  of  which  is  com- 
mon until  the  exigencies  of  the  social  state  require  that  they 
sh.all  be  subject  to  the  exclusive  use  of  individuals.  Inas- 
much, however,  as  the  property  is  in  the  nation  such  ex- 
clusive use  can  be  acquired  onlv  with  the  nation's  consent. 

By  the  Mexican  Civil  Code  of  1S70,  it  is  provided:  "The 
property  in  waters  which  pertains  to  the  State  does  not  pre- 
judice the  rights  which  corporations  or  private  individuals 
may  have  acquired  over  them  b}-  legitimate  title,  according 
to  what  is  established  in  the  special  laws  respecting  public 
property.  The  exercise  of  prop(  rfy  in  waters  is  subject  to 
what  is  provided  in  the  following  articles."  (Art.  1,066.) 
"  In  Guerra's  El  Codigo  Civil,  in  Forma  Didactica,"  the 
word  "  private  "  is  inserted  after  the  word  property,  so  as 
to  make  the  last  sentence  of  the  article  read  "  El  ejercidio 
de  la  prDpiedad  privada  de  las  aguas,  esta  sujeta,"  etc.  If, 
as  is  suggested  by  counsel,  the  presumption  is  that  the  pro- 
visions of  the  Codo  are  declaratory  of  the  pre-existing  law, 
the  right  which  could  be  acquired  under  the  laws,  to  the 
separate  use  of  the  portions  of  a  stream,  constituted  an  ex- 
clusive usufruct  of  the  nature  of  private  property,  which  did 
not  and  could  not  co-exist  with  a  common  use  of  such  waters 
by  all.  As  we  have  seen  running  water  is  capable  of  appro- 
priation as  private  property,  imlependent  of  any  common 
use,  where  the  quantity  of  water  is  so  small  as  to  be  in- 
capable of  being  fully  enjoyed  without  exclusive  possession. 
The  exclusive  appropriation  is  put  in  opposition  to  the  com- 
mon use.  (Bowyer,  supra.)  Article  789  of  the  Civil  Code 
defines  private  property:  "All  thiugs  the  dominion  of  which 
pertain  legally  to  private  persons,  and  those   which  cannot 


45 

be  used  Avithout  the  consent  of  the  owner,  are  private 
property." 

The  Mexican  Government  prohibited  any  diversion  or  ob- 
struction of  the  waters  of  a  river,  by  riparian  proprietors  or 
others,  which  shoukl  interfere  with  navigation.  Escriche 
says:  "  No  puede  ningun  particuLir  hacer  en  los  rios  ni  en 
sus  riberas  casa  6  otro  edificio  que  embarace  hi  navagaci^n, 
*  ^  porque  la  utilidad  de  todos  h)s  hombres  no  se  ha  de 
impedir  por  hi  de  uno  solo,"  etc.  It  has  been  said  that  riv- 
ers may  be  used  for  purposes  of  navigation,  not  only  by  the 
denizens  of  the  land  where  they  are  found,  but  by  strangers, 
unless  some  municipal  ordinance,  law  or  custom  coniines 
their  use  to  a  certain  class  of  persons.  (Febrero.)  This  of 
course  implies  that  the  sovereign  may  limit  the  right  of  nav- 
igation to  particular  classes.  '  'Notwithstanding  the  banks  of 
rivers  are  as  to  dominion  or  ownership  of  those  Avhose  lauds 
adjoin,  all  navigators  may  use  them,  by  tying  their  vessels 
to  the  trees  growing  there,  landing  their  merchandise  there- 
on," etc.  General  Halleck  says  that,  by  the  Eoman  law, 
the  right  to  navigate  rivers  carried  with  it  the  right  to  moor 
ships  to  the  banks.     (Inter.  Law,  supra.) 

Thus  it  was  the  policy  of  Mexico  to  foster  and  protect 
navigation;  the  rivers  naturally  adapted  to  the  passage  of 
water  craft  were  devoted  to  the  common  use  for  purposes  of 
navigation.  It  would  seem  to  be  in  the  power  of  the  sover- 
eign (except  so  far  as  the  power  is  limited  by  the  constitu- 
tion of  government)  to  authorize  such  diversions  as  shall 
interfere  with  navigation.  It  was  never  doubted  that  an  Act 
of  Parliament  would  operate  to  extinguish  any  public  right 
to  passage.  (Woolrych's  Law  of  Waters,  p.  289.)  While, 
however,  a  river  remained  a  navigable  river  the  navigation 
was,  by  the  civil  law,  common  to  all,  unless  the  privilege  was 
limited  to  a  class. 

Interference  with  the  appropriate  common  use  of  innavi- 
gable rivers  was  not  thus  absolutely  prohibited  by  the  Mex- 
ican law.  The  common  use  of  the  waters  of  such  rivers  by 
all  who  could  legall}-  gain  access  to  them,  continued  only 
while  the  waters  legally  flowed  in  their  natural  channel.  And 
the  power  of  determining  whether  the  public  good — the  pur- 
poses for  which  the  social  state  exists — demands  that  the  use 
of  the  whole  or  portions  of  the  waters  should  pass  as  an  ex- 
clusive right  to  one  or  a  class  of  individuals  remained  in  the 
sovereign.  Whether  the  power  is  an  incident  to  the  ultimate 
domain  or  right  of  disposing  of  the  property  of  the  State, 
or  is  to  be  referred  to  some  other  source  or  principle,  the 
Mexican  Government  employed  the  power  of  permitting  the 


'!G 

diversi()ii  of  waters  from  inuavigable  rivers  by  those  not  ri- 
parian proprietors,  upon  sucli  terms  and  conditions,  and 
with  such  limitations,  as  were  established  by  hiw,  or  by 
usages  or  customs  which  had  the  force  of  hiw.  That  Gov- 
ernment saw  fit  to  c<ineede  private  rights  to  the  exclusive  use 
of  the  waters  of  such  streams.  It  had  power  to  do  this  even 
if  the  consequence  should  be  the  entire  deprivation  of  the 
common  use. 

It  may  be  said  that  the  Mexican  laws  which  provided  for 
such  concessions  to  individuals  or  corporations  did  not  pro- 
vide for  fjr<mts  to  such  persons,  but  were  themselves  a  recog- 
nition of  a  right  in  all  to  a  use  of  the  waters.  But  a  system 
which  provided  for  the  mode  of  acquisition  of  private,  sepa- 
rate and  exclusive  rights,  by  individuals  or  corporations, 
cannot  bo  said  to  be  merely  in  regulation  of  a  common  use. 
The  common  right  of  passage  over  a  public  road,  or  of  navi- 
gation of  a  river,  ma}-  be  regulated  hy  laws  which  facilitate 
the  general  enjoyment  of  the  common  use.  But  under  pre- 
tense of  exercising  the  common  use,  ivhere  it  exists,  no  one 
can  interfere  with  its  enjoyment  by  others.  Article  803  of 
the  Code  of  1870 — except  perhaps  with  reference  to  some  of 
the  penalties  prescribed  declaratory  of  the  pre-existing  law 
— provides  "Those  who  obstruct  the  common  use  of  public 
property  are  subje^^t  to  the  established  penalties,  to  pay  all 
damage  and  injury  caused,  anito  suffer  the  loss  of  the  works 
they  shall  have  made." 

Those  who  appropriated  and  diverted  the  waters  of  an  in- 
navigable river  in  accordance  with  the  laws  obstructed  pro 
tanto  its  common  use.  Nevertheless  they  acquired  an  exclu- 
sive right  to  the  use  of  that  which  they  diverted,  because, 
if  they  complied  with  the  establi.shed  conditions,  their  rights 
were  acquired  under  and  in  accordance  wath  law,  and  the 
waters  they  diverted  were  no  longer  portions  of  the  waters  of 
a  river,  or  subject  to  the  common  use. 

No  on)  of  such  had  any  right  in  or  to  the  water  until  he 
had  complied  with  the  conditions  which  authorized  him  to 
appropriate  it.  Every  one  of  such  who  complied  with  the 
conditions,  and  appropriated  water,  acquired  a  vested  right 
in  such  water,  at  least  while  he  continued  to  use  it,  except 
in  the  single  case  where  he  acquired  a  right  merely  condi- 
tional, under  laws  which  reserved  the  po\ver  in  the  agents  of 
the  State  or  municipaUfy  to  deprive  him  of  it  without  indem- 
nification. It  may  be  conceded  that  one  who  had  acquired 
the  right  to  the  cxclusiv*;  use  of  a  portion  of  the  waters  of  a 
river  under  tin;  Mexican  regime  could  not  be  deprived  of 
his  right  by  ;i  law  of  California.     But  can  it  be  said  that  all 


47 

the  inhabitants  of  the  State,  or  of  a  valley  through  which 
a  stream  flows,  have  such  a  vested  right  in  the  use  of  the 
waters  which  some  of  them  (on  performance  of  the  conditions 
prescribed  by  Mexican  law),  might  have  appropriated,  but 
never  did  appropriate  ?  This  on  the  theory  that  the  waters 
had  been  dedicated  to  the  common  nse  of  all '?  It  would  be 
a  dedication  never  accepted  by  those  to  whom  it  was  made, 
and  a  dedication  to  a  common  use  which  could  never  be  en- 
joyed in  common. 

Those  who  had  not  appropriated  waters  in  the  mode  pre- 
scribed had  no  right  or  property  in  the  water  or  its  use,  of 
which  they  would  be  deprived  by  subsequent  legislation 
conferring  the  use  of  the  waters  on  riparian  proprietors 
alone.  And  it  would  seem  very  clear  that  those  who  actual- 
ly appropriated  water,  in  compliance  with  the  conditions 
prescribed,  acquired  a  proprietary  interest  df  which  they 
could  not  be  deprived — at  least  while  the}'  continued  its 
use — except  on  sufficient  indemnification.  It  cannot  be 
presumed  that,  under  a  Constitution  which  declares,  in  as 
distinct  terms  as  does  our  own,  that  private  property  shall 
not  be  taken,  except  on  due  compensation,  the  Legislature 
attempted  to  authorize  an  arbitrary  deprivation  of  property 
rights  acquired  by  expenditures  invited  by  the  laws  them- 
selves. At  common  law  if  a  navigable  river  should  happen 
to  change  its  course  the  right  of  navigation  extends  where- 
soever the  channel  should  run.  (Woolrych,  288.)  And  by 
the  Civil  Code  of  1870  rivers  and  their  beds  (alveos)  are  de- 
clared to  be  public  property  of  common  use.  (Sec.  802.) 
But  the  property  of  the  nation  in  the  space  subjacent  to  the 
river  ceases  when  that  space  ceases  to  be  the  bed.  "  When  a 
river  varies  its  course,  the  owners  of  the  fields  or  estates 
newdy  covered  by  the  waters  lose  the  space  which  the  river 
occupies,  and  the  riparian  proprietor  of  the  abandoned  bed 
acquires  the  part  in  front  of  his  laud  to  the  middle  of  the 
bed,"  etc.  (Civil  Code  1870,  Art.  897.  See  also  Esriche, 
Aguas  and  Kio  )  "  The  islands  which  are  formed  in  rivers 
not  navigable  or  flotable,  belong  to  the  proprietors  of  both 
banks  proportionably  with  the  extension  of  the  front  of  each 
estate  along  the  river,  drawing  a  dividing  line  through  the 
middle  of  the  bed."     (Art.  900.) 

Thus  the  property  of  the  nation  is  in  the  river  and  its  bed, 
while  it  is  the  bed  of  the  river;  the  common  use  continues 
while  the  water  is  the  water  of  a  river.  But  a  private  right 
to  the  exclusive  use  of  the  waters  could  be  acquired  under 
the  Mexican  law,  hy  prescription,  or  on  compliance  with  the 
established    conditions;    and   the   general   property  of   the 


48 

nation  in  running  waters  did  not  prejudice  such  special 
private  rights. 

Conceding  the  provisions  of  the  Civil  Codes  of  1870  and 
1884  to  bo  declaratory  of  the  law  as  it  existed  when  Califor- 
nia was  ceded  to  the  United  States,  they  do  not  confer  nor 
recognize  any  inherent  vested  right,  enforceable  in  the 
Courts,  in  others  than  riparian  proprietors,  to  the  use  of 
any  portion  of  the  waters  of  a  stream,  nor  any  right,  except 
as  to  those  who  actually  appropriate  waters  in  the  manner 
and  on  the  conditions  prescribed  by  the  laws.  It  may  be 
that  the  Mexican  system  implies  a  recognition  of  an  imper- 
fect obligation  or  moral  duty  on  the  part  of  the  Governuieut 
to  provide  for  the  distribution  of  the  waters  in  such  manner 
as  to  encourage  the  settlement  of  the  countr}-,  develop  man- 
ufactures and  benefit  agriculture.  In  this  view  it  would 
seem  that  the  laws  were  inspired  with  a  liberal  spirit  and 
were  well  calculatetl  to  advance  those  objects. 

By  the  Codes  the  owner  of  an  estate  in  which  there  is  a 
natural  spring  may  use  or  dispv)seof  its  waters,  subject  only 
to  condemnation  to  public  use  on  compensation  to  the  owner. 
(Art.  1  056  of  the  Code  of  1870.)  Such  was  the  law  previ- 
ously— the  spring  was  his  as  part  of  his  land.  (Escriche 
"  Aguas.")  By  article  1,066  of  the  same  Code  the  property 
of  the  State  does  not  prejudice  the  rights  over  waters  ac- 
quired by  individuals  or  corporations,  "  hy  legidni'te  title, 
according  to  what  is  established  hy  the  special  hues.''  That 
article  declares  that  the  exercise  of  private  propertj^in  waters 
is  subject  to  what  is  provided  in  Articles  1,067,  1,068  and 
1,069.  The  two  first  of  these  prohibit  any  diversion  which 
shall  interfere  with  navigation.  Article  1,069  declares: 
"The  owner  {el  prop r let (iriu)  of  water,  whatever  may  he  his 
title,  cannot  impede  the  use  {el  ahasto)  that  may  be  necessary 
for  the  persons  or  cattle  of  a  possession  or  rural  estate,  nor 
oppose  the  construction  of  indispensable  works  to  satisfy 
this  necessity  in  the  manner  least  injurious  to  the  owner,  but 
he  shall  have  a  riglit  to  indemnification,"  ("por  los  prejui- 
cios  que  por  tal  motivo  se  le  causen  " — Guerra),  save  that 
the  inhabitants  shall  have  acquired  the  use  of  the  water  by 
prescription  or  other  legal  title." 

Article  966  of  the  Code  of  1884  is  a  substitute  for  Articles 
1,067-8-9  of  the  Code  of  1870.  In  that  Article  it  is  said 
"He  who,  in  conformity  with  the  preceding  Article"  (He 
wlio  has  acquired  a  private  property  to  watcis,  by  legitimate 
title,  according  to  wiiat  is  established  in  the  special  laws?) 
"may  be  using  the  waters  of  a  river  cannot  impede,"  etc. 
Article   1,073  of   the   Code   of  1870   is:  "Every  one    who 


49 

wishes  to  use  the  water  of  which  he  can  dispose  has  a  right 
to  cause  it  to  pass  through  intermediate  grounds,  with  the 
obligation  of  indemuifj-ing  their  owners,  as  well,  also,  as 
those  who  own  the  lowei-  lands  on  or  through  which  the  wa- 
ters may  filter  or  fall."  ("  Asi  como  tambien  a  los  de  las  pre- 
dias  inferiores  sobre  que  se  filtren  6  caigau  las  aguas.") 
We  understand  the  last  class  to  be  those  whose  lands  are  in- 
jured bj  the  water  after  it  has  been  diverted. 

The  article  treats  of  a  legal  servitude  which  without 
agreement  or  prescription,  but  simply  as  a  cousequence  of 
the  respective  positions  of  the  estates  (Art.  1056)  is  im- 
posed on  land  situated  between  the  river  and  the  tract  or 
place  to  which  the  water  is  conducted.  It  does  not  purport 
to  give  the  absolute  right,  without  regard  to  the  conditions 
provided  by  laws,  or  administrative  regulations  under  the 
laws,  to  divert  waters  of  a  river  by  one  separated  from  it  by 
other  lands,  nor  define  the  mode  l3y  which  rights  thus  to  di- 
vert may  be  gained. 

The  laws  of  Mexico  relating  to  pueblos  conferred  on  the 
town  authorities  the  power  of  distributing  to  the  common 
lands  and  to  its  inhabitants,  the  waters  of  an  innavigable 
river  on  which  the  pueblo  was  situnted.  It  is  not  necessary 
to  say  that  the  property  of  the  nation  in  the  river,  as  such, 
was  transferred  to  the  pueblo,  but  it  would  seem  that  a 
species  of  right  to  the  use  of  all  its  waters  necessary  to  sup- 
ply the  domestic  wants  of  the  pobladores,the  irrigable  lands 
and  the  mills  and  manufactories  within  the  general  limits, 
was  vested  in  the  pueblo  authorities,  subject  to  the  trast  of 
distributing  them  for  the  benefit  of  the  settlers. 

A  translation  of  the  plan  of  Pitic  is  annexed  to  "Dwinelle's 
Colonial  History  of  San  Francisco."  (Addendum,  No.  7.) 
The  original  is  not  before  us.  Whether  the  plan  of  Pitic  is 
or  is  not  a  scheme  in  all  respects  applicable  to  every  pueblo 
created  after  the  date,  November  14,  1789  (as  is  claimed  by 
counsel),  it  may  be  conceded  the  provisions  therein  con- 
tained were,  in  substance,  those  having  force  in  the  pueblos 
established  in  California  while  it  was  part  of  the  territory  of 
Mexico. 

The  plan  authorized  a  Commissioner,  after  the  measure- 
ment of  the  exterior  lines  of  the  four  leagues,  to  set  apart 
tbe  ejidos,  proprios,  etc.,  and  to  distribute  the  remaining 
lands  to  the  settlers  in  separate  tracts. 

The  Nineteenth  and  Twentieth  Sections  of  the  Plan  read: 
"Nineteenth— The  advantage  of  irrigation  being  the  prin- 
cipal means  of  fertilizing  the  lands,  and  the  most  conducive 
to  the  increase  of  the  settlement,  the  Commissioner  shall 


50 

tiike  particular  care  to  distribute  the  waters  so  that  all  the 
Land  that  maybe  irrigable  might  partake  of  them,  especially 
at  the  seasons  of  spring  and  summer,  when  they  are  most 
necessary  to  the  cultivated  land  in  order  to  insure  the  crops, 
for  which  purpose,  availing  himself  of  skillful  or  intelligent 
persons,  he  shall  divide  the  territory  into  districts  (partidos) 
or  hereditaments,  marking  out  to  each  one  a  trench  or  ditch, 
starting  from  the  main  source,  with  the  quantity  of  water 
which  might  be  regulated  as  sufficient  for  its  irrigation,  at 
the  said  periods  and  at  the  other  seasons  of  the  year  that 
tliey  may  need  them,  by  which  means  each  settler  shall  know 
the  trench  or  ditch  by  which  his  hereditament  shall  be  irri- 
gated, nnd  that  he  cannot  and  shall  not  have  the  power  to 
take  the  water  of  another,  nor  in  a  greater  quantity  than 
that  which  maj'  fall  to  his  share,  for  which  purj^oseand  that 
it  may  not  increase  in  injury  to  the  owners  situated  on  the 
land  beyond  or  still  lower,  it  shall  be  proper  for  the  trenches 
or  partitions  to  be  constructed  in  the  main  ditch  made  of 
lime  and  stone  at  the  cost  of  the  settlers  themselves. 

"Twentieth — In  order  that  these  (the  settlers)  might  en- 
joy with  equity  and  justice  the  benefit  of  the  waters  in  pro- 
portion to  the  need  of  their  respective  crops,  there  shall  be 
named  annually,  by  the  Ayuntamiento,  one  Alcalde  (or  Man- 
dador),  for  each  trench,  to  whose  charge  shall  fall  the  care 
of  distributing  them  in  the  estates  (heredades)  comprised 
in  the  'partido '  or  liereditament,  which  shall  be  irrigated 
by  them  in  proportion  to  their  need  for  this  benefit,  desig- 
nating by  a  list,  which  he  shall  make  out,  the  hours  of  d.ay 
and  night  at  which  each  owner  (heredado)  shall  irrigate  his 
lands  sown  with  grain;  and  in  order  that  by  the  carelessness 
or  indolence  of  the  owners  (duenos)  those  (the  lands)  that 
may  need  them,  shall  not  remain  without  irrigation,  nor  the 
crops  be  lost,  whereby,  inde])eiident  of  the  piivate  injury, 
may  also  result  that  of  the  public  and  community,  produced 
by  the  want  of  provisions  and  supplies,  it  shall  also  come 
within  the  duty  of  the  Alcalde,  or  Mandador,  for  each  trench 
to  have  a  servant  (peon),  or  day  laborer,  knowing  the  hour 
of  the  day  or  night  designated  for  the  irrigation  of  each 
tract  of  land  or  corn-field,  who,  in  default  of  its  owner, 
shall  take  care  to  irrigate  it;  the  just  price  of  his  labor, 
which  shall  be  caused  to  be  paid  to  him  by  the  owner  of  the 
land  or  estate  (heredad)  irrigated,  to  be  thereafter  regulated 
by  the  Commissioner  or  by  the  Justice." 

In  Hart  v.  Burnett  (15  Cal.,  530),  it  was  held  that  the 
pueblo  had  a  "certain  right  or  title"  to  the  hmds  within  its 
general  limits,   notwithstanding  the   fact   that  the  Mexican 


61 

Government  retained  the  power  to  make  grants  within  those 
limits;  that  the  pueblo  authorities  w^ere  more  than  mere 
agents  of  the  government  to  dispose  of  the  lands  as  public 
lands,  but  the  pueblo  itself  had  a  vested  interest  in  the  lands 
and  that  the  portions  of  such  hinds  not  set  aside  or  dedicated 
to  common  uses,  or  for  special  purposes,  could  be  granted 
in  lots  by  the  municipal  officers  to  private  persons,  in  full 
ownership.  That  the  city  of  San  Francisco  succeeded  to 
the  right  or  title  of  the  pueblo,  and  that  the  municipal  lands 
to  which  it  thus  succeeded  were  held  in  trust  for  the  public 
use  of  the  city,  and  were  not  subject  to  seizure  and  sale  un- 
der execution  issued  on  a  judgment  against  the  city.  That 
the  property  and  trusts  were  public  and  municipal  in  their 
nature,  were  wMthiu  the  supervision  and  control  of  the  State 
sovereignt}'.  and  the  Federal  Government  had  no  such 
supervision  or  control.  That  the  Act  of  the  State  Legisla- 
ture of  March,  1858,  confirming  the  so-called  Van  Ness  Ordi- 
nance, was  a  legal  and  proper  exercise  of  this  sovereign 
power. 

By  analogy  and  in  conformity  with  the  principles  of  that 
decision,  we  hold  the  pueblos  had  a  species  of  property  in 
the  flowing  waters  within  their  limits,  or  "a  certain  right  or 
title  "  in  their  use,  in  trust  to  be  distributed  to  the  common 
lands,  and  to  the  lands  originally  set  apart  to  the  settlers  or 
subsequently  granted  by  the  munici])al  authorities.  It  may 
be  conceded  that  such  authorities  were  not  authorized  to 
make  concessions  to  individuals  of  the  perpetual  and  exclu- 
sive use  of  portions  of  the  waters,  without  reference  to  the 
needs  of  the  other  inhabitants;  or  that  such  concessions 
would  be  an  abuse  of  the  trust.  But  they  had  a  species  of 
right  or  title  in  the  waters  and  their  use,  subject  to  the  pub- 
lic trust  of  continuously  distributing  the  use  in  just  propor- 
tion. The  trust  is  Avithin  the  supervision  or  control  of  the 
State.  Thus  the  Legislature  has  provided  for  the  mode  and 
manner  in  which  shall  be  exercised  the  trust  of  distributing 
the  waters  by  the  cifi/,  the  successor  of  the  pueblo  of  Los 
Angeles.  The  inhabitants  of  the  former  pueblo,  who  were 
using  water  when  this  territory  was  transferred  to  the  United 
States  had  not  acquired  a  vested  right  to  any  particular  quan- 
tity of  water.  And  the  occupants  of  lands  within  the  city, 
the  pueblo's  successor,  are  beneficiaries  only  to  the  extent 
that  they  are  entitled  to  the  use  of  such  water  and  at  such 
times,  as  accords  with  the  laws  regulating  the  public  and 
municipal  trust. 

Each  pueblo  was  quasi  a  public  corporation.  By  the 
scheme  of  the  Mexican  law  it  was  treated   as    an   entity    or 


52 

person,  liaviug  a,  riglit  as  such,  aud  bj  reason  of  its  title  to 
the  four  leagues  of  land,  to  the  use  of  the  waters  of  ihe 
river  on  which  it  was  situated,  while  as  a  political  body,  it 
was  vested  with  power,  by  ordinance,  to  provide  for  a  d's- 
tributiou  of  the  waters  to  those  for  whose  benefit  the  right 
and  power  were  conferred. 

Esvriche  deduces  from  law  eight,  title  twenty-eight,  aud 
law  eighteen,  title  thirty-two  —  partida  three — and  from 
writers  basing  their  opinion  on  those  laws  and  the  Roman 
laws — that  vmy  inhabitant  of  a  pueblo  througli  which  passed 
an  innavigable  river  might  extract  a  part  of  its  waters,  aud 
construct  an  acequia  in  order  to  irrigate  his  land,  or  to  run 
his  mill,  providing  he  could  do  so  "without  prejudice  to 
the  common  use  or  destiny  which  the  pueblo  shall  have 
given  the  waters;  with  the  understanding  that  if  the 
acequia  shall  cross  the  land  of  another,  or  the  crown  lauds, 
or  the  land  common  to  inhabitants  of  the  pueblo,  a  license 
from  the  private  owner,  or  from  the  King,  or  from  the  town 
council  is  indispensable."  (Bajo  el  supesto  de  que  si  la 
acequia  hubiese  de  atravesar  suelo  ajeno,  realengo  6  con- 
cejil,"  etc.     Escriche  "Acequia.") 

Thus,  by  virtue  of  the  laws,  each  person  having  land 
within  the  pueblos  was  i)ermitted  to  conduct  water  to  it 
(obtaining  the  consent  of  the  owners  of  the  lands  between 
his  and  the  river);  provided,  by  so  doing,  he  did  not  violate 
the  municipal  ordinances  giving  destination  or  distributive 
use  to  the  waters. 

By  its  terms,  this  permission  was  accorded  only  to  the 
inhabitants  of  the  pueblo,  and  could  be  acted  on  only  in 
such  manner  as  should  not  interfere  with  municipal  ordi- 
nances. 

After  speaking  of  springs  rising  in  a  man's  land,  which 
are  his  property,  Escriche  says:  "Waters  beloug  to  the 
public  which  are  not  and  cannot  (tiius?)  be  private  property. 
Such  are  the  wafers  of  rivers  which,  by  themselves,  or  by 
accession  with  others,  pursue  their  course  to  the  ocean. 
They  may  be  navigable,  or  not  navigable.  If  navigable,  no 
one  can  avail  himself  of  the  waters  so  as  to  embarrass  or 
hinder  navigation.  If  not  navigable,  the  owners  of  the 
lands  through  which  they  pass  may  use  the  waters  thereof 
for  the  utilit}'  of  their  farms  or  industry,  withoid  prejudice  to 
the  common  use  or  dest'nnj  tvhich  the  pueblos  on  their  course 
shall  have  given  them,  and  with  the  modifications  provided  in 
tiie  laws,  orders  and  decrees  which  are  spoken  of  under  the 
word  Acequia.  ("  Aguas  " — "  De  las  aguas  que  perteuecen 
al'publico.") 


53 

And  in  treating  of  "  waters  which  pass  by  the  side  or 
through  an  estate  "  the  same  writer  says:  "The  use  of 
waters  of  which  no  one  can  avail  himself  without  a  license 
from  the  authority  is  to  be  reguhited  (debe  arreglarse)  by 
municipal  ordiuauces  or  by  the  usages  and  customs  of  the 
country."  (Los  usos  y  costumbres — general  and  long  con- 
tinued practices  which  have  acquired  the  force  of  law.) 
"But,  in  default  of  ordinances  and  customs,  equity,  and  the 
interests  of  agriculture  dictate  the  following  rules."  He 
proceeds:  "The  waters  of  fountains  and  springs  are  the 
property  of  the  owners  of  the  lauds  on  which  they  rise; 
■^  *  *  but  as  they  go  out  from  thence  they  become  running 
waters  (aqua  profiuens)  and  pertain  like  common  things 
(cosas  comunes)  to  the  first  who  occupies  them,  so  far  as  he 
has  need  of  them.  The  first  wlio  can  occupy  them  are  the 
owners  of  the  estates  which  they  bathe  or  cross."  He  then 
treats  of  the  rights  of  riparian  proprietors  to  the  use  of  the 
waters  as  between  themselves. 

From  the  foregoing  it  appears  that  the  riparian  proprietor 
could  not  appropriate  water  in  such  manner  as  should  inter- 
fere with  the  common  use  or  destiny  which  a  pueblo  on  the 
stream  should  have  given  to  the  waters;  and  semble  that  the 
pueblos  had  a  preference  or  prior  right  to  consume  the 
waters  even  as  against  an  upper  riparian  proprietor.  The 
common  use  here  spoken  of  is  the  use  for  the  benefit  of  the 
community  or  inhalDitants  of  the  pueblo,  whose  interest  as  a 
whole  were  to  be  considered  in  the  distribution  of  the  waters 
by  the  officers  of  the  pueblo.  (Plau  of  Pitic,  Sec.  20.)  It 
is  not  necessary  here  to  decide  that  the  pueblos  had  the 
preference  above  suggested.  Nor  is  it  necessary  here  to 
speak  of  the  relative  rights  of  two  or  more  municipalities  on 
the  same  stream.  In  such  case  (whatever  the  standard  by 
which  were  to  be  determined  the  relative  rights  of  the  pueblos 
respectively  as  to  the  quantity  of  water)  it  would  seem  clear 
that  the  municipal  regulations  of  each,  with  respect  to  the 
application  and  distribution  of  water,  would  be  of  force  only 
within  its  own  boundaries.  But  there  could  be  no  municipal 
ordinance  of  a  pueblo  regulating  or  distributing  the  waters 
of  a  stream  amongst  its  inhabitants,  or  other  persons,  until 
a  pueblo  was  established.  We  take  notice  that  no  pueblo 
existed  on  the  watercourse  (if  any  there  be)  which  is  the 
subject  of  the  present  controversy.  No  portion  of  its  waters 
were  therefore  dedicated  or  devoted  to  the  use  of  the  inhabi- 
tants of  a  pueblo  by  virtue  of  the  laws  giving  to  pueblos 
the  power  of  distributing  waters. 


54 

Turning  now  to  the  "laws,  orders  and  decrees,"  under  the 
word  Aceqida,  to  which  we  are  referred  by  Escriche: 

In  the  instructions  of  May  15,  1788,  to  corregidores  (mag- 
istrates with  a  species  i>f  supervision  over  matters  political 
and  ecoiioaiical  in  pueblos  and  district^)  and  superior  (ap- 
pointed) alcahles,  they  were  directed,  in  order  to  promote 
the  utility  of  the  fields  by  the  use  of  all  the  water  that  could 
be  applied  for  their  benefit,  to  adopt  measures  for  the  con- 
struction of  acequias  from  the  rivers,  draining  them  in  the 
parts  most  convenient,  w'dhout  prejudice  lo  their  course  and  to 
the  hncer  districts,  and  taking  care  also  to  discover  subterran- 
ean waters  in  order  to  use  them,  "as  well  us  for  fiour  mills, 
fulling  mills  and  other  necessary  and  convenient  machinery 
for  grinding,"  etc.  (Nov  Eecopilacion,  T.  3,  tit.  11,  lib.  7, 
law  27,  Sec.  48;  Hall's  Mex.  Law,  Sec.  1,402.) 

By  the  royal  decree  of  the  31st  of  August,  1819,  favors 
were  extended  to  tiyuutamientos,  communities,  companies 
and  individuals  who,  "  with  the  previous  corresponding  per- 
mission of  the  Government,"  should  construct  at  their  own 
cost  ditches  or  canals  for  new  irrigations,  taking  water  from 
rivers  which  afford  an  ahundant  supply,  or  carry  much  water 
(caudalosos)  collecting  at  one  place  the  waters  of  the  arroyos 
or  springs,  or  conducting  them  from  the  bosom  of  a  high 
mountain,  etc.  The  favors  extended  by  the  decree  are  enu- 
merated by  Escriche,  and  consisted  in  the  main  of  remis- 
sion of  tithes,  first  fruits,  etc.  It  is  doubtful  whether  this 
decree  was  in  force  when  California  passed  from  under  the 
sway  of  the  Mexican  rule.  But,  if  so,  Escriche  adds:  "Not- 
withstanding what  h;is  been  said,  no  individual  or  corpora- 
tion can  withdraw  from  their  source,  or  on  their  course,  the 
waters  of  springs  or  rivers  that  from  ancient  times  have  ir- 
rigated other  lands  lower  down,  which  cannot  be  despoiled," 
etc. 

The  last  statement  is  based  by  the  author  upon  the  royal 
order  of  1834,  which,  as  is  suggested,  was  never  operated 
in  Mexico.  Upon  principles  recognized  by  the  Mexican 
law,  however,  no  one  could  be  deprived  of  a  right  to  the 
use  acquired  by  pre.sc/-i/9<to/i  to  waters  actually  employed  by 
him,  and  it  would  appear  also  by  the  Mexican  Code,  no 
owner  of  water,  "whatever  his  title,"  can  entirely  deprive 
of  water  a  lower  estate.  Besides,  the  decree  permitted  the 
construction  of  ditches  for  "  new  irrigations, "  and  speaks 
of  rivers  carrying  great  quantities  of  water.  We  are  not 
prepared  to  say  but  I  hat,  even  where  the  common  law  pre- 
vails, provision  may  be  made  for  the  storing  and  distribu- 
tion of  waters,  the  result  of  extraordinary  floods  caused  by 


55 

the  melting  of  the  snows,  or  long-continued  and  heavy 
rains  in  the  mountains  or  near  the  source  of  the  river, 
since  such  an  extraordinary  freshet  would  not  be  the  ordi- 
nary flow  of  the  stream.  However  this  may  be,  water 
could  not  be  diverted— under  the  decree  referred  to — by  an 
ayuntamiento,  community,  company  or  individual,  not  a 
riparian  proprietor,  without  "the  previous  corresponding 
permission  of  the  Government." 

Thus,  the  waters  of  innavigable  rivers,  while  they  con- 
tinued such,  were  subject  to  the  common  use  of  all  who 
could  legally  gain  access  to  them  for  purposes  necessarv 
to  the  support  of  life,  but  the  Mexican  Government  pos- 
sessed the  power  of  retaining  the  watei's  in  their  natural 
channel,  or  of  conceding  the  exclusive  use  of  portions  of 
them  to  individuals  or  corporations,  upon  such  terms  and 
conditions,  and  with  such  limitations  as  it  saw  fit  to  estab- 
lish by  law. 

The  respondent  here  is  not  the  successor  in  interest  of  an 
individual  or  corporation  which  acquired  a  property  in  the 
exclusive  use  of  waters  by  compliance  with  the  conditions 
prescribed  by  the  laws  of  Mexico,  or  in  ac  cordance  with 
municipal  ordinances  or  regulations,  or  under  any  custom  of 
the  country.  No  city  or  pueblo  existed  on  the  alleged 
stream,  and  at  the  trial  hereof  no  evidence  was  given  of 
any  special  or  general  custom  with  respect  to  the  particular 
stream,  or  with  respect  to  all  rivers  in  California.  No  gen- 
eral custom  existed.  Moreover,  if  it  had  ever  existed,  it 
would  have  continued  only  until  abrogated  by  legislation. 
It  has  sometimes  been  claimed  that,  by  the  modern  civil 
law,  the  proprietor  of  land  in  which  is  the  source  of  a 
stream  may  capture  and  absolutely  control  the  waters,  even 
after  they  have  flowed  beyond  his  boundaries,  in  a  natural 
stream.  But  Lord  Kingsdown  (in  3Iiner  v.  Gilmour,  12 
Moore's  P.  C,  131),  said  it  did  not  appear  that,  as  to  ri- 
parian rights,  any  material  distinction  exists  between  the 
French  law  (prior  to  the  Code  Napoleon)  and  the  English 
law.  Sir  James  Colville  refused  to  admit  that,  by  the 
Dutch-Eoman  law  which  governs  in  the  Cape  of  Good  Hope 
Colony,  the  riparian  right  of  a  lower  proprietor  would  not 
attach  upon  water  which  followed,  in  a  known  and  definite 
channel,  beyond  the  bo:ndaries  of  the  land  within  which 
its  fountain  arose.  {Breda  v.  Silberhanr,  L.  Rep.,  3  P.  C, 
94.)  In  a  very  late  case  before  the  Privy  Council,  on  ap- 
peal from  the  Supreme  Court  of  the  Cape  of  Good  Hope, 
it  was  said  to  be  prohable,  that,  by  the  Dutch-Eoman  law, 
the  dominion  of  the  owner  of  the  source  of  a  stream  was 


56 

subject  to  the  rights  which  the  English  Law  recognizes  in 
riparian  proprietors  to  water  flowing  in  a  known  and  defi- 
nite channel.  {Comrs.  of  Hoeh  v.  Hugo,  10  Law  Rep.  Ap., 
345.) 

V. 

Upon  the.  admission  of  Ccdiforitia  into  the  Union,  this  State  be- 
came vested  with  all  the  rights,  sovereignty  a)id  jurisdiction 
in  and  over  navigable  ivaters,  and  the  soils  under  them, 
which  ivere  possessed  bij  the  original  States  after  the  adoption 
of  the  Constitution  of  the  United  States. 

Since  the  admission  of  California,  into  the  Union,  the 
public  lands  of  the  United  States  (except  such  as  have  been  re- 
served or  pitrchased  for  forts,  navy  yards,  public  buildings, 
etc.),  are  held  as  are  the  lands  of  private  persons,  except 
that  they  cannot  be  taxed  by  the  State,  nor  can  the  primary 
disposition  of  them  be  interfered  with. 

Between  the  transfer  of  California  to  the  United  Statos, 
by  the  Treaty  of  Guadalupe  Hidalgo,  and  the  admission  of 
this  State  into  the  Union,  no  Territorial  Government  was 
here  established.  The  purely  municipal  law  of  Mexico 
continued  in  force  within  this  Territory  until  modified  or  en- 
tirely changed  by  appropriate  authority. 

By  the  treaty,  the  public  property  of  Mexico  passed  to 
the  United  States.  It  would  seem  that  the  latter  accepted 
the  cession  of  the  property  and  sovereign  rights  in  trust 
(arising  out  of  the  very  nature  of  our  Government),  to 
hold  for  the  State  or  States  which  might  be  subsequently 
formed  out  of  the  Territory.  Whether  so  or  not,  Califor- 
nia was  admitted  into  the  Union  "upon  an  equal  footing" 
with  the  original  thirteen  States,  and  from  that  date  she  be- 
came seized  of  all  the  rights  of  sovereignty,  jurisdiction 
and  eminent  domain  which  those  States  ])ossessed. 

When  the  Revolution  took  place  the  people  of  each  State 
became  tliemselves  sovereign,  and  in  that  character  held  the 
absolute  right  to  all  their  navigable  waters  and  the  soils 
under  tliem,  subject  only  to  the  rights  since  surrendered  by 
the  Constitution  to  the  General  Government.  {Martin  v. 
Waddell,  16  Peters,  410.) 

The  navigable  waters  and  the  soils  under  them  were  not 
granted  to  the  United  States  by  any  of  the  original  States, 
but  were  reserved  to  the  States  respectively;  and  the  new 
States  have  the  same   rights,   sovereignty   and  jurisdiction 


57 

over  this  subject  as  the  original  States.     (PoUarcrs  Les.-^te  v 
Hac/an,  3  How.  U.  S.,  212.) 

The  lands  of  the  United  States  (not  reserved  or  purchased 
for  fortihcations,  etc.,  are  held,  since  the  admission  of  the 
State  into  the  Union,  as  are  held  the  lands  of  private  per- 
sons, with  the  exception  that  they  are  not  taxable,  by  reason 
of  the  contract  to  that  effect.  Of  course  the  State  cannot 
interfere  with  the  j)rimary  disposition  of  such  lands  by  their 
owners. 

September  9,  1850,  the  Act  of  Congress  was  approved,  ad- 
mitting the  State  of  California  into  the  Union  "ouan  equal 
footing  with  the  original  States  in  all  respects  whatever," 
with  the  conditions  that  the  State  should  never  interfere  with 
the  primary  disposal  of  the  public  lands  within  its  limits, 
nor  tax  tliem,  and  that  the  n  ivigable  rivers  should  be  public 
highways  as  to  citizens  of  all  the  States.  (9  Stats,  at  Large, 
p.  453.) 

ri. 

Shwe,  if  not  before  the  admission  of  California  into  the  Union, 
the  United  States  has  been  the  oioner  of  all  innavigable 
streams  on  the  public  lands  of  the  United  States,  ivithin  our 
borders,  and  of  their  baiiks  and  beds. 

A  (jrant  of  jjublic  land  of  the  United  States  carries  luith 
it  the  common-law  rights  to  an  imtavujable  stream  thereon, 
unless  the  luatcrs  are  expressly  or  impliedly  reserved  by  the 
ieriiis  of  the  patent,  or  of  the  statute  granting  the,  land,  or 
unless  they  are  reserved  by  the  congressional  legislation  au- 
thorizing the  patent  or  other  mutiimeut  of  title. 

The  original  States  only  retained  property  in  the  navig- 
able rivers  (subject  to  their  free  navigation  by  the  citizens 
of  all  the  States)  and  the  subjacent  soils,  because,  by  tiie 
common  law  which  prevailed  in  those  States,  innavigable 
streams  were  private,  and  their  beds  the  property  of  rij^a- 
rian  proprietors.  By  the  Mexican  law,  however,  innavig- 
able streams  were  public  property.  It  might  be  claimed 
that,  as  this  propei  t}'  of  the  Mexican  nation  in  non-navig- 
able rivers  and  their  beds,  was  an  incident  to  the  sov- 
ereign t}^  it  became  vested  in  the  State  of  California  when 
the  State  was  admitted  into  the  Union.  If  this  were  ad- 
mitted it  would  follow  that  the  United  States  has  had  no 
property  in  innavigable  streams,  their  beds  and  Avaters,  and 
all  attempts  to  deraigu  a  title  from  the  United  States  to 
waters  appropriated  on  public  lands  — under  the  Act  of 
Congress  of  1866,  or  otherwise — must  fail. 


58 

It  may  be  maintaiuecl,  at  least  pluusibl}',  that  the  admis- 
sion of  California  into  the  Union  "  on  an  equal  footing  Avith 
the  original  States,"  of  itself  operated  an  immediate  transfer 
of  the  pro])erty  in  the  innavigable  rivers  to  the  Federal 
Government,  so"that  the  property  of  the  State  was  momentary. 
However  this  may  be,  on  the  13th  of  April,  1850,  the  Legis- 
lature of  California  had  passed  an  Act  "adopting  the  com- 
mon law,"  which  reads:  "The  common  law  of  England,  so 
far  as  it  is  not  repugnant  to  or  inconsistent  with  the  Con- 
stitution of  the  United  States,  or  the  Constitution  or  laws 
of  the  State  of  California,  shall  be  the  rule  of  decision  in 
all  the  courts  of  this  State."  (Stats.  1850,  p.  219.)  The 
validity  of  the  Acts  of  the  first  Legislature  of  California, 
or  of  rights  acquired  under  them,  even  prior  to  the  admis- 
sion of  the  State,  has  never  been  questioned.  Certainly, 
when  constitutional,  those  Acts  became  valid  and  in  opera- 
tion for  every  purpose  from  the  date  of  the  admission  of  the 
State  into  the  Union. 

It  is  urged  that  the  statute  quoted  was  designed  and  intend- 
ed simply  to  furnish  a  rule  of  decision  for  the  courts  as  to 
rights  vested  under  other  laws.  We  have  endeavored  to 
show  that  during  the  Mexican  rule  "all  the  inhabitants"  of 
the  territory  did  not  acquire  a  vested  right  to  the  use  of  all 
the  wateis  by  virtue  of  their  dedication  to  common  use.  If 
such  right  had  vested,  the  peculiar  lang\iage  of  the  statute 
would  not  have  afiected  the  question.  If  there  is  any  am- 
biguity, arising  out  of  the  use  of  the  words  "rule  of  decis- 
ion" in  the  body  of  the  Act,  we  can  refer  to  its  title,  "An 
.Act  adopting  tlie  Common  Law."  And  reading  the  Act,  "  the 
common  law  of  England  is  hereby  adopted,"  etc.,  the  Act 
did  not  and  could  not  operate  to  divest  property  rights  pre- 
viously acquired  b}''  piivate  persons,  nor  any  right  of  com- 
mon use  fixed  by  previous  dedication. 

But,  while  vested  rights  could  not  be  taken  away,  yet  if 
the  innavigable  rivers  and  their  beds  belonged  to  the  State 
when  admitted  into  the  Union,  the  State  could  grant  or  sur- 
render them  to  the  riparian  proprietors,  of  whom  the  United 
States  was  one.  Giving  full  force  to  the  proposition  that  a 
grant  by  the  State  should  be  construed  more  strongly  against 
the  grantee,  Ave  think,  in  view  of  the  purpose  of  the  Act  (to 
adopt  the  apjn'oi^riate  rules  of  the  common  law  as  determin- 
ative rules  when  not  in  conflict  with  the  constitutions  and 
statutes)  and  of  the  subsequent  judicial  history  of  the  State, 
the  Act  of  April  13,  1850,  should  now  be  held  to  have  oper- 
ated (at  least  from  the  admission  into  the  LTnion)  a  transfer 
or  surrender,  to  all  riparian  proprietors,  of  the  property  of 


59 

the  State — if  any  she  had — in  innavigable  streams  and  the 
soils  below  them. 

It  has  often  been  held  by  this  Court  and  its  predecessors 
that  a  grant  of  a  tract  of  land  bounded  by  a  river  or  creek 
not  navigable  conveys  the  land  to  the  thread  of  the  stream. 
And  from  a  very  early  day  the  courts  of  this  State  have  con- 
sidered the  United  States  Government  as  the  owner  of  such 
running  waters  on  the  public  lands  of  the  United  States 
and  of  their  beds.  Recognizing  the  United  States  as  the 
owner  of  the  lands  and  waters,  and  as  therefore  authorized 
to  permit  the  occupation  or  diversion  of  the  waters  as  dis- 
tinct from  the  lands,  the  State  courts  have  treated  the  prior 
appropriator  of  water  on  the  public  lands  of  the  Unitetl 
States  as  having  a  better  right  than  a  subsequent  appropria- 
tor, on  the  theory  that  the  appropriation  was  allowed  or 
licensed  by  the  United  States.  It  has  never  been  held 
that  the  right  to  appropriate  waters  on  the  public  lands  of 
the  United  States  was  derived  directly  from  the  State  of 
California  as  the  owner  of  innavigable  streams  and  their 
beds.  And  since  the  Act  of  Congress  granting  or  recogniz- 
ing a  property  in  the  waters  actually  diverted  and  u>efully 
applied  on  the  public  lands  of  the  United  States,  such 
rights  have  always  been  claimed  to  be  deraigned  by  private 
persons  under  the  Act  of  Congress;  from  the  recognition 
accorded  by  the  Act;  or,  from  the  acquiescence  of  the  Gen- 
eral Government  in  previous  appropriations  made  with  its 
presumed  sanction  and  approval. 

If  the  United  States,  since  the  treaty  with  Mexico,  has 
been  the  owner  of  the  innavigable  streams  and  their  beds 
(in  trust  for  the  State  or  absolutely),  or  has  been  the  owner 
thereof  as  a  consequence  of  the  Act  admitting  the  State 
into  the  Union,  or  of  the  State  Act  of  1850,  or  as  a  conse- 
quence of  both  those  statutes  taken  together,  the  same  is 
true  as  to  other  riparian  proprietors;  at  least,  since  the  date 
of  the  first-named  Act.  They  have  been  recognized  as  such 
owners  by  our  Courts.  Prior  and  subsequent  to  the  enact- 
ments of  the  Civil  Code  with  respect  to  appropriations  of 
water,  the  rights  to  the  use  of  water  by  private  riparian  pro- 
prietors, as  between  themselves,  have  repeatedly  been  ju- 
dicially determined  by  reference  to  the  common-law  rules 
on  the  subject,  which — as  is  said  by  counsel— differ  some- 
what from  those  of  the  Mexican  law\ 

And,  if  the  United  States,  since  the  date  of  the  admission 
of  the  State,  has  been  the  owner  of  the  innavigable  streams 
on  its  lands,  and  of  the  subjacent  soils,  grants  of  its  lands 
must  be  held  to  carry  with   them   the  approi)riate  common- 


60 

law  use  of  the  waters  of  the  innavigable  streams  thereon; 
except  where  the  flowing  waters  have  been  reserved  from  the 
grant.  To  hold  otherwise  would  be  to  hold,  not  only  that 
the  lands  of  the  United  States  are  not  taxable,  and  that  the 
primary  disposal  of  them  is  beyond  State  interference,  but 
that  the  United  States,  as  a  riparian  owner  within  the  State, 
has  other  and  difterent  rights  than  other  riparian  owners, 
including  its  own  grantees. 

The  Government  of  the  United  States  has  the  absolute 
and  perfect  title  to  its  lands.  {U)iited States  v.  Gear,  3  How., 
20:  Jordan  v.  Barrett,  4  Id.,  185;  U.  S.  v.  Hwihes,  11  Id., 
508;  Irwin  v  Marshdl,  20  Id.,  561;  Bag  nelly.  Broad  n  ill,  13 
Peters,  450;  U.  S.  v.  Gratid,  14  Id.,  526.)  Unless,  there- 
fore, running  waters  are  reserved,  they  pass  by  grant  or 
patent  of  the  United  States.  It  was  so  held  in  Vansiclde  v. 
Haines,  supra.  The  Supreme  Court  of  Nevada  cite  Cook  v. 
Foster,  2  Gilman,  052;  Wilson  v.  AIcGhee,  12  111.,  381,  and 
Calvin  v.  Burnett,  2  Hill,  620;  and  quote  with  approval  the 
language  of  Mr.  A.ngell,  who  says: 

"The  onl}'  mode  by  which  a  right  of  property  in  a  water- 
course above  tide  water  can  be  withheld  from  a  person  who 
receives  a  grant  of  the  land,  is  by  a  reservation  directly  ex- 
pressed, or  clearly  implied  to  such  effect.  If  the  intention 
of  the  grantor  is  not  to  convey  any  interest  in  the  water,  he 
Ciin  exclude  it  by  the  insertion  in  the  instrument  of  con- 
veyance of  proper  words  for  the  purpose  of  doing  so;  but, 
in  the  absence  of  such  words,  the  bed,  and  consequently  the 
stream  itself,  passes  b}'  the  conveyance."       (7  Nevada,  266.) 

Whatever  mnj  be  the  weight  as  authority  of  Vansicle  v. 
'Haines  in  other  respects,  the  statements  that  the  grantee  or 
patentee  acquires  from  the  United  States — the  absolute  and 
unqualified  owner  of  the  public  lands — common-law  rights 
in  the  waters  flowing  through  the  land  granted  (except  where 
the  waters  or  a  portion  of  them  are  reserved)  has  never  been 
disputed. 

VII. 

The  State  of  California  became  the  oivm-r  of  the  swiuiip  lands, 
described  i)i  the  complaint  herein,  on.  the  28^/i  day  of  Sep- 
tember, 1850. 

The  State  of  California  having  been  admitted  into  the 
Union  on  the  9th  day  of  September,  1850,  on  the  28th  of 
the  same  September  the  Congress  passed  an  Act,  "to  enable 
the  State  of  Arkansas  and  other  States  to  reclaim  the  swamp 
and  overflowed  lands  within  their  limits,"  which  reads: 


61 

"Be  it  enacted  by  the  Senate  and  House  of  Eepresenta- 
tives  of  the  United  States  of  America,  in  Congress  assem- 
bled, That  to  enable  the  State  of  Arkansas  to  construct  the 
necessary  levees  and  drains  to  reclaim  the  swamp  and  over- 
flowed lands  therein,  the  whole  of  those  swamp  and  over- 
flowed lands,  made  unfit  thereby  for  cultivation,  which  shall 
remain  unsold  at  the  passage  of  this  Act,  shall  be,  and  the 
same  are  hereby,  granted  to  said  State. 

"  Sec.  2.  That  it  shall  be  the  duty  of  the  Secretary  of 
the  Interior,  as  soon  as  may  be  practicable  after  the  passage 
of  this  xAct,  to  make  out  an  accurate  list  and  plats  of  the 
lands  described  as  aforesaid,  and  transmit  the  same  to  the 
Governor  of  the  State  of  Arkansas,  and,  at  the  request  of 
said  Governor,  cause  a  patent  to  be  issued  to  the  State 
therefor;  and  on  that  patent  the  fee  simple  to  said  lands 
shall  vest  in  the  said  State  of  Arkansas,  subject  to  the  dis- 
posal of  the  Legislature  thereof;  provided,  however,  that 
the  proceeds  of  said  lands,  whether  from  sale  or  by  direct 
appropriation  in  kind,  shall  be  applied  exclusively,  as  far 
as  necessary,  to  the  purpose  of  reclaiming  said  lands  by 
means  of  the  levees  and  drains  aforesaid. 

"  Sec.  3.  That  in  making  out  a  list  and  plats  of  the  land 
aforesaid,  all  legal  subdivisions,  the  greater  part  of  which 
is  'wet  and  unfit  for  cultivation,'  shall  be  included  in  said 
list  and  plats;  but  when  the  greater  part  of  a  subdivision  is 
not  of  that  character,  the  whole  of  it  shall  be  excluded 
therefrom. 

"  Sec.  4.     That  the  provisions  of  this  Act  be  extended  to, 
and   their    benefits  be  conferred  upon,  each  of  the    other 
States  of  the  Union  in   which  such  swamp  and  overflowed- 
lands,  known  and  designated  as  aforesaid,  may  be  situated." 
(9  Stats,  at  Large,  p.  519). 

The  lands  claimed  by  the  plaintiffs  herein  are  admittedly 
swamp  and  overflowed,  and  no  point  was  made  by  de- 
fendant that  the  lands  had  not  been  duly  listed  to  the 
State  prior  to  the  certificates  of  purchase  offered  in  evidence. 
Even  if  it  had  been  made  to  appear  that  the  lauds  had  not 
been  listed,  the  fact  that  they  are  swamp  and  overflowed 
would  have  shown  that  the  State  acquired  a  present  vested 
right  in  them  as  of  the  date  of  the  Act  of  Congress  of  Sep- 
tember 28, 1850.  {Railroad  Company  v.  Smith,  9  Wall.,  95). 
It  is  true  that  case  turned  in  part  on  the  language  of  the 
grant  to  the  railroad  company  which  reserved  lands  "  pre- 
viously sold  or  disposed  of."  (See  Bnilroad  Company  v.  Free- 
rnonl  County,  9  Wall.,  89).  But  the  case  clearly  recognizes 
the  Act  of  1850   as  a  grant  to  the  State  in  prcasenti  of    the 


62 

lands  which  should  subsequently  be  listed  as  swamp  and 
overflowed,  by  the  Secretary  of  the  Interior,  or  which  should 
be  proved  to  be  snch. 

In  the  subsequent  case,  French  v.  Fyan  (93  U.  B.,  173), 
it  was  expressly  said  that  nothing  was  decided  in  conflict 
with'Rdi/road  Company  v.  Smith;  the  Supreme  Court  say- 
ing that  in  the  opinion  in  the  last-named  case  there  is  the 
strongest  implication  that  if  the  Secretary  had  made  "an 
adverse  decision,"  the  evidence  that  the  land  there  in  con- 
troversy was  in  fact  swamp  and  overflowed  should  have  been 
rejected.  In  French  v.  Ft/an,  it  was  held  that  the  determ- 
ination of  the  Secretary  that  certain  land  was  swamp  and 
overflowed,  and  the  patent,  issued  thereon,  were  conclusive 
of  the  fact,  and  that  the  opposing  party  could  not  be  per- 
mitted to  prove  that  the  land  was  not  swamj)  laud.  Further, 
that  the  patent — the  evidence  that  the  land  described  in  it 
had  been  identified  as  swamp  and  overflowed — related  back 
and  gave  certainty  to  the  title  of  the  date  of  the  grant.  The 
Supreme  Court  of  the  United  States  said:  "This  Court  has 
decided  more  than  once  that  the  Swamp  Laud  Act  was  a 
grant  in  proesenti,  by  which  the  title  to  those  lands  passed 
at  once  to  the  State  in  which  they  lay."  The  certificate  or 
listing  of  the  Secretary,  like  the  formal  patent,  relates  back 
to  the  date  of  the  Act  granting  the  lands.  And  so,  when 
the  character  of  the  land  appears  from  the  evidence  identi- 
fying it  as  swamp  and  overflowed,  it  is  established  that  the 
title  to  the  particular  land  was  vested  in  the  State,  Septem- 
ber 28,  1850 — the  date  of  the  Act  granting  all  the  swamp  and 
overflowed  lands.  But  snch  evidence  that  the  land  is  swamp 
and  overflowed  is  admissible  in  ejectment  onlij  where  the 
Secretary  of  the  Interior  has  failed  to  act,  and  is  not  admis- 
sible to  overcome  the  eflect  of  a  patent  issued  to  a  settler 
under  the  pre-emption  laws.  (Ehrhardl.  v.  Hogah<X)ne,  ll5 
U.  S.,  67.) 

The  State  then  had  the  title  to  the  lands  described  in  the 
complaint  herein  from  the  date  of  the  Act  referred  to  until 
the  sale  of  the  same  to  the  plaintiffs  or  their  assignors. 

Note — We  have  deemed  it  unnecessary  to  consider  (under 
a  separate  head)  the  suggestion,  either  that  there  can  not  be 
a  watercourse  through  swamp  land,  or  that  the  defendant 
was  empowered  to  drain  the  plaintiffs'  lands  for  them,  and, 
inMoing  so,  to  divert  a  flowing  stream  from  the  lands  of 
plaintift's,  and  from  all  the  lands  lying  on  the  stream  above 
or  below  the  plaiiitilTs'  lands.  The  State  took  the  swamp 
lauds  with  the  jiolitical  obligation  to  reclaim  them  after  they 
were  sold.     It  may  be  doubted  whether  the  implied  promise 


63 

on  the  part  of  the  State,  to  apply  the  proceeds  of  sales  of 
such  lauds  exclusively  to  tbeir  reclamation,  was  Jer>Hllv  a 
condition  suhseqiwnt,  the  faikire  to  perform  which  would 
authorize  a  forfeiture  of  the  grant.  That,  however,  would 
be  a  question  between  the  United  States  and  the  State-  a 
controversy  in  which  the  defendant  here  would  have  no 
interest.  The  State's  grantee  of  swamp  lands  takes  the  full 
title,  subject  to  the  powder  of  the  State  to  reclaim  the  land, 
and  for  that  object  to  impose  and  collect  assessments  upon 
it;  subject  also  (perhaps)  to  a  forfeiture  of  his  own  and  the 
State's  title,  in  a  proceeding  inaugurated  by  tlie  United 
States,  if  the  land  should  not  be  reclaimed  by  the  State.  It 
may  be  added  there  are  very  grave  doubts  whether,  upon  a 
fair  interpretation  of  the  State  statutes  providing  for  recla- 
mation, the  barring  of  the  flow  of  a  regular  and  defined 
stream  from  lands  below,  not  swamp,  is  contemplated;  or 
whether  the  State  would  have  poAver,  by  any  statute,  to 
authorize  such  a  proceeding.  The  statute  seems  to  have  in 
view  levees  along  the  sides  of  watercourses  and  not  across 
them. 

VIII. 

It  has  never  been  held  by  the  Supreme  Court  of  the  United  States, 
or  by  the  Supreme  Court  of  this  State,  that  an  appropria- 
tion of  water  on  the  public  lands  of  the  United  States  (made 
after  the  Act  of  Congress  of  July  26,  1866,  or  the  Amenda- 
tory Act  of  1870J  ga,ve  to  the  appropriator  the  right  to  the 
ivater  apjjropriated  as  against  a  grantee  of  riparian  lands, 
under  a  grant  made  or  issued  prior  to  the  Act  of  1866; 
except  in  a  case  ivhere  the  lo.der  so  subsequently  approjyriatcd 
toas  reserved  by  the  terms  of  such  grant. 

Since,  as  before,  September  28,  1850,  the  United  States 
has  been  the  owner  of  lands  in  California  with  power  to 
dispose  of  the  same  in  such  manner  and  on  such  terms  and 
conditions  (not  interfering  with  vested  rights  derived  from 
the  United  States)  as  it  deemed  proper.  But  neither  the 
legislation  of  Congress  with  respect  to  the  disposition  of 
the  public  lands,  nor  its  apparent  acquiescence  in  the  ap- 
propriation by  individuals  of  waters  thereon,  subsequent  to 
the  Act  of  September,  1850,  granting  the  swamp  lands  to 
the  State,  can  affect  the  title  of  the  State  to  lands  and  waters 
granted  by  that  Act. 

Neither  the  Supreme  Court  of  the  United  States  nor  the 
Supreme  Court  of  California  has  ever  held  in  opposition  to 
this  view. 


64 

In  Vansicldew  Haines  (lie  plaintiff  had  diverted  oiie-foiutli 
of  the  water  of  Daggett  Creek  in  the  year  1857.  He  made 
the  diversion  at  a  point  then  on  the  public  land,  but  which 
in  1864  was  patented  by  the  United  States  to  the  defendant 
Haines.  In  1865  Yansickle  obtained  a  patent  for  his  own 
land  where  he  used  the  water.  In  1867  Haines  constructed 
a  wood  flume  on  his  land  and  turned  into  it  all  the  water  of 
the  stream,  thereby  depriving  the  plaintiff  of  that  part  of  it 
which  he  had  been  using. 

The  Supicme  Court  of  Nevada  held  that  the  })laintiff  by 
his  appropiiation  of  water /jr/or  to  the  date  of  defendant's 
})ateut  acquired  no  right  which  could  affect  that  grant,  and 
that  while  the  Act  of  Congress  of  July,  1866,  protected 
those  who  at  that  time  were  diverting  water  from  its  natural 
channels  on  the  public  lands,  and  while  ail  patents  issued  or 
titles  acquired  from  the  United  States  since  that  date  are 
obtained  subject  to  the  rights  of  Avater  by  appropriation  ex- 
isting at  that  time,  yet  with  re-pect  to  patents  for  riparian 
lands  issued  before  the  Ad  of  Congress,  the  patentee  had  al- 
ready acquired  the  right  to  the  flow  of  water  Avith  which 
Congress  could  not  interfere. 

In  Broder  \.  Water  Conqxtny' (101  U.  S. ,  274)  it  appeared: 
In  the  year  1853  the  defendant  completed  a  canal  through 
Avliich  it  had  continuouslj'  conducted  waters  and  distributed 
them  for  mining,  agricultural  and  other  uses;  that  a  portion 
of  the  land  through  Avhich  the  canal  ran  Avas  included  in 
the  land  granted  to  the  Pacific  Railroad  (under  whom  plain- 
tiff claimed)  by  the  Act  of  July  2,  1864.  That  the  plaintiff 
also  claimed  as  a  pre-emptor,  the  inception  of  his  claim  as 
such  being  a  declaratory  statement  filed  August  6,   1866. 

The  Court  held  that  ihe  plaintiff  was  not  entitled  to  haA^e 
the  canal  running  through  his  land,  abated  as  a  nuisance,  by 
re.. son  of  his  pre-emption  right,  because,  preA'ious  to  the 
initiation  of  proceedings  to  secure  pre-emption  (on  the  26th 
of  July,  1886 — 14  Stats,  at  L.,  2G1)  Congress  had  enacted  a 
statute,  the  ninth  section  of  Avhich  contained  the  declaration: 
"That  AvhercA'er,  by  priority  of  possession,  rights  to  the  use 
of  water  for  mining,  agricultural,  manufacturing,  or  other 
purposes,  have  vtsted  and  accrued,  and  the  same  are  recog- 
nized and  acknoAvledged  by  the  local  customs,  laws,  and  the 
decisions  of  courts,  the  possessors  and  owners  of  such  vested 
lights  shall  be  maintained  and  |.)rotected  in  the  same;  and 
the  right  of  way  for  the  construction  of  ditches  and  canals, 
for  the  purposes  aforesaid,  is  hereby  acknowledged  and  con- 
firmed." 

The  Court  also  held  that  the  plaintiff*  Avas  not  entitled  to 


65 

relief  under  his  deraignment  of  title  from  the  railroad  com- 
pany, because  the  grant  to  the  company  of  July  -',  1864, 
containetl  the  following  reservation  : 

"Any  lands  granted  by  this  Act,  or  the  Act  to  which  this  is 
an  amendment,  shall  not  defeat  or  impair  any  pre-emption, 
homestead,  swamp-land,  or  other  lawful  claim,  nor  include 
any  Government  reservation  or  mineral  lands,  or  the  im- 
provements of  any  bona  fide  settler  on  any  lands  returned  or 
denominated  as  mineral  lands,  and  the  timber  necessary  to 
support  his  said  improvements  as  a  miner  or  agriculturist." 

In  the  opinion  of  the  Court  the  section  of  the  Act  of  1866 
above  quoted  "was  rather  a  voluntary  recognition  of  a  pre- 
existing right  of  possession,  constituting  a  valid  claim  to  its 
continued  use,  than  the  establishment  of  a  new  one, "and 
that  the  claim  of  the  defendant  to  the  right  of  way  was  such 
a  "lawful  claim"  as  was  unaftected  by  the  grant  to  the  rail- 
road company  made  before  the  Act  of  1866  was  passed. 

Broder  v.  Water  Company  m;iy  appear  to  be  in  conflict 
with  Vmisickle  y.  Haines.  But  is  there  any  real  conflict? 
It  will  be  observed  that  the  Broder  case  turned  (so  far  as 
the  plaintiff's  title  from  the  railroad  company  was  concerned) 
on  the  reservation  clause  in  the  Act  constituting  the  grant 
to  the  companv,  and  the  Court  held  that  "a  lawful  claim  " 
within  the  meaning  of  the  reservation  in  the  Act  of  1864, 
was  "  any  honest  claim  evidenced  by  improvements  and 
other  acts  of  possession."  The  construction  given  to  the 
language  of  the  reservation,  of  course,  implies  that  those 
who  appropriated  lands  or  waters  on  the  public  lauds,  prior 
to  the  Acts  of  1864  or  1866  had  not  been  treated  by  the  Gov- 
ernment in  those  Acts  as  mere  trespassers,  but  as  there  by 
license.  It  does  not  imply  that  they  had  acquired  any  title, 
which  could  be  asserted  against  the  United  States  or  its 
grantees,  except  so  far  as  their  occupations  of  land  or  water 
were  protected  and  reserved  to  them,  by  Acts   of  Congress. 

In  Broder  v.  The  Water  Compan!/  the  claim  of  the  appro- 
priator  was  recognized  in  the  grant  to  the  railroad  company, 
and  prior  to  the  initiation  by  the  plaintiff  of  proceedings 
to  secure  a  pre-emption.  In  the  case  at  bar  the  grant  of 
the  lands  to  the  State  (containing  no  reservation  of  the 
waters  of  flowing  streams  expressed  or  to  be  implied  from  its 
terms)  was  made  nearly  thirty  years  before  the  first  appro- 
priation of  water  by  the  defendant,  which  was  after  the  Act 
of  Congress  of  July,  1866,  and  the  Amendatory  Act  of  1870. 
(Copp's  Mg.,  Dec,  1873-74,  296.) 

In  Osgood  V.  Water  Company  (56  Cal.,  571),  it  was  held 
that  where  a  person    acquired   a  right  by  appropriation  to 


66 

water  upon  the  public  lands  of  the  United  States,  before  the 
issuance  of  a  patent  to  another  for  lands  through  which  the 
stream  ran,  the  patentee's  rights  were  "  by  express  statu- 
tory enactment,  subject  to  the  rights  of  the  appropriator.'' 
The  Court  cited  the  Amendatory  Act  of  Congress,  above 
referred  to,  the  seventeenth  section  of  which  reads: 

"That  all  patents,  granted,  or  pre-emptions  or  home- 
steads all  "wed,  shall  be  subject  to  any  vested  and  accrued 
water  rights,  or  lights  to  ditches  and  reservoirs  used  in  con- 
nection with  such  water  rights,  as  m;iy  have  been  accpiired 
under  or  recognized  by  the  ninth  section  of  the  Act  of  which 
this  is  amendatory." 

At  the  trial  of  Osgood  v.  lVate7-  Conqxiny  in  the  lower 
court  the  plaintift"  testified  that  he  filed  his  declaratory  state- 
ment as  a  pre-emptor,  June  18,  1868,  but  the  Court  found 
that  defendant's  appropriation  was  prior  to  that  date.  There 
is  nothing  in  that  case  which  precludes  us  from  holding  that 
a  pre-emption  claim  relates  to  the  pre-emption  certificate  so 
as  to  give  the  pre-emptor  the  better  right  as  against  an  ap- 
piopiiatiou  of  water,  made  after  the  certificate  is  given  to 
tlie  pre-emptor.  The  late  Professor  Pomeroy,  in  one  of  a 
series  of  able  articles  published  in  the  Wed  Coast  Reporter, 
questions  vvhetlier  the  occupant  of  public  lands,  with  the 
qualifications  of  a  pre-emptor,  can  be  deprived  of  the  flow 
of  the  stream  by  an  apjnupriator  who  commences  the  acts 
leading  to  apiiropriation  after  the  occupation  of  the  other 
begins.  It  is  not  necessary  to  consider  this  proposition  in 
the  present  case. 

Two  of  the  members  of  this  Court  dissented  from  the 
conclusion  reached  in  Osgood  v.  Water  CoriijKiiiy,  on  the 
ground  that  the  waters  had  not  in  fact  been  appropriated  in 
accordance  with  the  local  rules  or  regulations,  cr  with  the 
rulings  of  the  courts.  (See  Pacific  Coast  L.  J.,  Vol.  2,  p. 
322.) 

Both  Broder  v.  Water  Company  and  Osgood  y.  Water  Co)n- 
paiuj  are  (by  strongest  implication)  authority  for  the  state- 
jneut  that  one  who  acquired  a  title  to  riparian  lauds  fioni 
the  United  States  prior  to  the  Act  of  July  26,  1866,  could 
not  (in  the  absence  of  reservation  in  his  grant)  be  deprived 
of  his  common-law  rights  to  the  How  of  the  stream  by 
one  who  appropriated  its  waters  after  the  passage  of  that 
Act. 

Much  stress  is  Laid  by  counsel  on  the  language  used  in 
Broder  v.  Water  Conrpauy  (sapra)  with  reference  to  the  clause 
in  the  Act  of  1866  that  water  rights  recognized  or  acknow- 
ledged by  the  local  customs,  etc.,  "shall  be  maintained  and 


67 

protected"  "was  rather  a  recognition  of  a  pre-existing  right 
of  possession;  constituting  a  valid  claim  to  its  continued  use, 
than  the  establishment  of  a  new  one,"  But  this  language  is 
to  be  interpreted  in  view  of  the  context.  The  language  can- 
not be  construed  as  a  recognition  by  the  Court  of  vested 
rights  in  appropriators  of  water,  created  by  mere  appropria- 
tion and  independent  of  statute.  The  case  proceeds  on  tlie 
assumption  that  neither  the  phiintiff  nor  the  defendant  had 
any  rights  except  such  as  were  granted  or  recognized  by 
Acts  of  Congress.  It  holds  that  appro[)riators  of  water  from 
streams  on  (or  flowing  to)  the  lands  granted  the  Act  of  1864 
were  '  'recognized"  or  admitted  to  have  rights,  which  were  pro- 
tected by  that  Act;  because  the  Act  by  its  terms  reserved 
from  the  grant  to  the  railroad  company  every  "lawful 
claim;"  that  one  who  had  been  permitted  to  divert  water 
from  those  lands  had  a  claim  which  was  not  in  itself  unlaw- 
ful, and  that  the  reservation  included  ^ 'every  honest  claiiii, 
evidenced  by  acts  of  possession. 

There  is  no  statement  in  the  opinion  in  Broder  v.  Water 
Conipauy,  that  except  for  the  reservation  found  in  the  Act 
of  1864,  and  the  provision  in  the  Act  of  1866,  the  defendant 
would  have  any  right  to  the  water  as  against  tlie  grantees 
named  in  the  Act  first  named,  or  their  successors  in  interest. 
The  Court  holds  that  Broder  acquired  no  right  by  virtue  of 
his  pre-emption,  because  his  proceedings  to  secure  it  were 
begun  after  the  Act  of  1866 — which  recognized  the  prior 
appropriation  of  the  water  as  being  a  right  in  the  appropria- 
tor— and  that  Broder  acquired  no  right  under  the  railroad 
grant,  because  the  water  previously  appropriated  was  re- 
served in  that  grant. 

IX, 

The  rights  of  the  State  under  the  grant  of  September  28,  1850, 
do  not  depend  iqmn,  nor  are  they  limited  by  the  decisions  of 
the  Slate  courts  loith  respect  to  controversies  npon  the  public 
lands  of  the  United  States.  Those  decisions  do  not  enter 
into  nor  operate  upon  the  subsequent  legislation,  of  Con- 
gress, in  such  manner  as  to  require  that  the  legislation  (or 
its  afjUrmance  of  rights  recognized  by  the  State  courts  as  ex- 
isting betiveen  occupants  upon  the  public  lands  of  the  United 
States)  must  be  construed  as  an  attempt  to  deprive  the 
State  of  its  vested  rights. 

If  the  decisions  mentioned  can  Ix'  referred  to  for  any  pur- 


68 

pose,  semhle :  Ihat  the  occupant  of  a  tract  of  riparian 
land  (arable  or  grazing)  o)t  the  public  domain  is  by  such 
decisions  presumed  to  have  received  a  grant  of  the  flowing 
loaier,  to  the  extent  of  the  common-law  right  to  the  use  of 
such  Wider  as  it  flows  through  the  land. 

And  if  the  doctrine  as  to  adverse  claims  upon  thep)ublic 
lands  as  declared  by  these  decisions  be  extended  to  lands 
granted  to  the  State,  it  cannot  effect  the  title  or  estate  of 
grantees  of  the  State  (the  wcder  not  being  reserved  in  the 
grants  or  in  the  legislation  authorizing  the  graut).  The 
doctrine  is  applicable  alo)ie  to  actions  in  lohich  both  parties 
claiin  only  by  possession . 

It  is  insisted  that,  the  "doctrine  of  appropriation"  is  not, 
and  never  was  applicable  to  public  lauds — State  or  United 
States — in  California. 

It  raaj  be  conceded  that  while  lauds  continue  public 
lands — and  in  controversies  between  occupants  of  laud  or 
water  thereon — ^the  common-law  doctrine  of  riparian  rights 
liMS  no  application. 

Bat  where  one  or  both  of  the  parties  claim  under  a  grant 
from  the  United  States  (the  absolute  owner,  whose  grant  in- 
cludes all  the  incidents  of  the  land  and  every  part  of  it)  it  is 
difficult  to  see  how  a  policy  of  the  State  -  or  a  general  prac- 
tice— or  rulings  of  the  State  Court  with  reference  to  adverse 
occupants  on  public  lands — can  be  relied  on,  as  limiting  the 
effeci  of  grants  of  the  United  States,  without  asserting  that 
the  State,  or  people  of  the  State,  may  interfere  with  "the 
primarv  disposal  of  the  public  lauds." 

It  has  been  urged  that  the  courts  of  this  State  should 
adopt  the  doctrine  of  apjpropriation.  as  it  is  accepted  iu  Colo- 
rado. But,  if  it  be  conceded  that  the  Colorado  decisions 
can  be  sustained  on  any  legal  principle,  the  legal  conditions 
here  are  different.  The  Gth  and  7th  Sections  of  Article  XVI 
of  the  Constitution  of  that  State  read: 

"  Sec.  6,  The  right  to  divert  the  unappropriated  waters  of 
any  natural  stream  to  beneficial  uses  shall  never  be  denied. 
Priority  of  appropriation  shall  give  the  better  rightas  between 
those  using  the  water  for  the  same  purpose;  but  Avlien  the 
waters  of  any  natural  stream  are  not  sutficieutfor  the  service 
of  all  those  desiring  the  use  of  the  same,  those  using  the 
water  for  domestic  purposes  sliall  have  the  preference 
over   those   claiming    for    any    other    purpose,    and    those 


69 

using  the  water  for  agricultural  purposes  shall  have  prefer- 
ence over  those  using  the  same  form  anufacturing  purposes." 

"  Sec.  7.  All  persons  and  corporations  shall  have  the  right 
of  way  across  public,  private  and  corporate  lands  for  the 
construction  of  ditches,  canals  and  flumes  for  the  purpose  of 
conveying  water  for  domestic  purposes,  for  the  irrigation  of 
agricultural  lands  and  for  mining  and  manufacturing  pur- 
poses, and  for  draimige,  upon  payment  of  just  compensation." 

In  Coffin  V.  Left  Hand  Company  (6  Col.,  447),  Schill'mg  v. 
Romiiiger  (4  Id.,  102),  is  referred  to  apparently  as  authority 
for  the  statement  that,  in  the  absence  of  express  statute  to 
the  contrary,  the  first  appropriator  of  a  natural  stream,  has 
the  better  right  as  against  a  subsequent  patentee  of  the 
lands  below.  But  Schilling  v.  Bominger  was  a  contest  be- 
tween appropriators  of  laud  and  water  on  the  public  hinds, 
none  of  whom  had  any  title  other  than  possession. 

In  Coffin  V.  Left  Hand  Company,  both  the  appropriation  of 
the  water  and  the  patent  to  the  riparian  land  preceded  the 
Act  of  Congress  of  1866,  and  of  course  the  adoption  of  the 
State  Constitution,  in  1876.  The  appropriation  of  the  water 
was  prior  to  the  patent.  So  far  as  the  decision  does  not  de- 
pend upon  the  statutes  of  the  Territory  of  Colorado,  it  is  in 
conflict  with  VansicJde  v.  Haines;  the  learned  Court  being  of 
the  opinion  that  the  Nevada  case  was  overruled  by  Broderv. 
Water  Company.  But  as  we  have  seen  (supra')  in  Broder  v. 
Water  Company  it  was  held  that  in  the  grant  of  lands  to  the 
railroad  company  the  water  was  reserved  for  the  benefit  of 
the  prior  appropriator.  And  even  if  the  case  last  mentioned 
could  be  held  to  have  decided  that  the  right  acquired  by 
one  who  appropriated  water  on  the  public  lands  prior  to  a 
grant  to  anothe'r  of  land  over  which  the  stream  would  flow 
(made  before  the  Act  of  1866)  was  a  vested  right,  protected 
although  not  mentioned  nor  referred  to  in  the  grant,  still 
there  is  nothing  in  that  case  which  would  give  preference  to 
an  appropriation  of  water  made  (as  in  the  case  at  bar)  long 
after  the  grant  of  the  land. 

If,  by  the  Act  of  Congress  admitting  Colorado  into  the 
Union,  with  a  Constitution  containing  the  provisions  above 
recited,  the  United  States  could  abandon  the  primary  dis- 
posal of  its  lands  to  the  extent  that  not  only  every  subse- 
quent, but  every  prior  grant  of  land,  would  be  subject  to 
an  appropriation  of  water  made  prior  to  the  grant,  this 
would  not  affect  the  question  as  applied  to  the  facts  of  the 
case  now  before  us,  since  our  Constitution  does  not  contain 
provisions  like  those  in  the  Constitution  of  Colorado,  and 
here   the   grant  of    the   land  preceded   the    appropriation. 


70 

Aud  so,  if  the  Uuited  States  is  bound  by  the  Territorial 
statutes,  as  construed  by  tlie  Supreme  Court  of  Colorado. 

In  Coffin  V.  Left  Hcaid  Coitipan//,  the  appropriator  was 
given  tlie  preference,  by  virtue  of  certain  statutes  of  the 
Territory  of  Colorado,  JDassed  in  1861,  1862  and  1861.  It 
m;iy  be  that,  in  interpreting  these  statutes,  the  Court  was 
somewhat  influenced  by  Ihe  general  proposition  already  laid 
down  or  assumed  in  its  opinion,  that,  in  the  absence  of  ex- 
press statute,  the  prior  appropriator  of  water  had  the  bet- 
ter right  as  against  all  the  world.  But  the  Territorial 
Statutes  were  so  construed  as  to  give  the  right  to  the  prior 
appropriator. 

It  would  seem  clear,  however,  that  the  rights  of  parties 
who  claim  title  under  grant  from  the  United  States  of  parts 
of  the  public  domain,  must  be  determined  by  reference  to 
laws  ol  the  United  States  relating  to  the  disposition  of  its 
domain.  And  this  fact  is  recognized  by  the  Supreme  Court 
of  Coloratlo,  which  appeals  to  Broder  v.  Water  Company  us 
supporting  its  interpretation  of  these  laws. 

It  may  he  suggested,  however,  that  the  rulings  of  the 
courts  of  California  with  reference  to  possessory  rights  on 
public  mineral  lands;  enter  into  and,  in  some  manner,  limit 
the  effect  of  grants  of  land  by  the  Government  of  the  United 
States,  made,  as  is  assumed,  under  statutes  enacted  in  view 
of  the  local  law,  and  of  the  varying  rules  and  regulations  of 
mining  districts.  The  statutes  passed  long  afterwards  can- 
not afiect  rights  acquired  by  the  State  by  virtue  of  a  grant 
made  in  1850;  nor  can  the  subsequent  policy  of  the  United 
States  (which  is  supposed  to  be  indicated  by  a  failure,  by 
express  laws,  to  prohibit  the  occupation  of  portions  of  its 
lands  for  mining,  etc.,  and  by  the  omission  of  the  executive 
ofhcers  to  attempt  to  remove  miners  and  other  occupants  by 
force)  be  held  to  afiect  the  rights  acquired  by  the  State 
through  the  grant  of  1850. 

The  law  of  California,  with  reference  to  priority  of  poses- 
sion  on  the  public  lands  has  been  so  long  established  that 
we  are  apt  to  forget  the  whole  system  was  built  upon  a  pre- 
sumption, entertained  by  the  courts,  of  a  permission  from 
the  United  States  to  occupy.  It  was  said  by  Hydenfeldt,  J., 
in  1856:  "One  of  the  favorite  and  much-indulged  doctrines 
of  the  common  law  is  the  doctrine  of  presumption.  Thus, 
for  the  purpose  of  settling  men's  difi'erences  a  presumption 
is  often  indulged  where  the  fact  presumed  cannot  have  ex- 
isted. In  support  of  this  proposition  I  will  refer  to  a  few 
eminent  authorities.  *  -5^  *  In  these  cases  presumptions 
were  indulged  against  the   truth — presumptions  of  Acts  of 


71 

Parliament  and  grants  from  the  Crown.  It  is  true  the  basis 
of  the  presumption  was  length  of  time— but  the  reason  of  it 
\v;is  to  settle  dispntesand  to  quiet  the  possession.  If,  then, 
l.ipse  of  time  requires  a  Court  to  raise  presumptions,  other 
circumstances,  Avhich  are  equally  potent  and  persuasive, 
must  have  the  like  efi'ect  for  the  purposes  of  the  desired 
end;  for  lapse  of  time  is  but  a  circumstance  or  fact  Avhich 
calls  out  the  principle,  and  is  not  the  principle  itself. 

"Every  Judge  is  bound  to  knoAV  the  history  and  the  lead- 
ing tr  its  which  enter  into  the  history  of  the  country  Avheie 
he  presides.  This  Ave  have  held  before,  and  it  is  also  an  ad- 
mitted doctrine  of  the  common  law.  We  must  therefore 
know  that  this  State  has  a  large  territory  ;  that  upon  its 
acquisition  by  the  United  States,  from  the  sparseness  of  its 
population,  but  a  small  comparative  proportion  of  its  land 
iias  been  granted  to  private  individuals  ;  that  the  great  bulk 
of  it  was  laud  of  the  Government  ;  that  but  little  as  yet  has 
been  acquired  by  individuals  by  purchase  ;  that  our  citizens 
have  gone  u}>on  the  public  lands  coutinnmisl}',  from  a  period 
anterior  to  the  organization  of  the  State  Government  to  the 
present  time  ;  upon  these  lands  they  have  dug  for  gold;  ex- 
cavated mineral  rock;  constructed  ditches,  flumes  and 
canals  for  conducting  water;  built  mills  for  sawing  lumber 
and  grinding  corn;  established  farms  for  cultivating  the 
earth;  made  settlements  for  the  grazing  of  cattle;  laid  off 
towns  and  villages;  felled  trees;  diverted  water  courses; 
and,  indeed,  have  done,  in  the  various  enterprises  of  life, 
all  that  is  useful  and  necessary  in  the  high  condition  of  civil- 
ized development.  All  of  these  are  open  and  notorious  facts, 
charging  with  notice  of  them  not  only  tlie  courts  who  have 
to  apply  the  law  in  reference  to  them,  but  also  the  Govern- 
ment of  the  United  States,  which  claims  to  be  the  proprietor 
of  these  lands;  and  the  Government  of  the  State,  within  whose 
sovereign  juiisdictiou  they  exist. 

"In  the  face  of  these  notorious  facts,  the  Government  of 
the  United  States  has  not  attempted  to  assert  any  right  of 
ownership  to  any  of  the  large  bodv  of  lands  Avithin  the 
mineral  region  of  the  State.  The  State  Government  has  not 
only  looked  on  quiescently  upon  the  uniA-ersal  appropriation 
of  the  public  domain  for  all  of  these  purposes,  but  has 
studiously  encouraged  them,  in  some  instances,  and  recog- 
nized them  in  all. 

"  NoAv,  can  it  be  said,  Avith  any  propriety  of  reason  or 
common-sense,  that  the  parties  to  these  acts  have  acquired 
no  rights?  If  they  have  acquired  rights,  these  rights  rest 
upon  the  presumption   of  a   grant   of  right,    arising  either 


froui  the  tacit  assent  of  the  sovereign,  oi*  from  expressions 
of  her  will  in  the  course  of  her  general  legislation,  and,  in- 
deed, from  both. 

"  Possession  gives  title  only  by  presumption;  then,  when 
tiie  possession  is  shown  to  be  of  public  land,  why  may  not 
any  one  oust  the  possessor?  Why  can  the  hitter  ])roiec'this 
possession?  Only  upon  the  doctrine  of  presumption,  for  a 
license  to  occupv  from  the  owner  will  be  presumed."  (Con- 
ger \.  Weaver,  6" Cci\,  55^-7.) 

Both  the  right  to  appropriate  water  on  the  public  lands 
and  that  of  the  occupant  of  portions  of  such  lands  are  de- 
rived from  the  imj)lied  consent  of  the  owner,  and  as  l)et\veen 
the  appropriator  of  laud  or  water  the  first  possessor  has  the 
better  right.  The  two  rights  stand  upon  an  equal  footing 
and  when  they  conflict  they  must  be  decided  by  the  fact  of 
priority.  (Irwin  v.  Phillips,  5  Cal.,  140.)  Since  the  United 
States,  the  owner  of  the  land  and  water,  is  presumed  to  have 
])ermitted  the  appropriation  of  both  the  one  and  the  other, 
as  between  themselves  the  prior  possessor  must  prevail. 

None  of  the  early  cases  intimate  that  the  occupant  of  laud, 
bordering  on  a  stream,  was  presumed  to  have  any  less  rights 
in  the  usufruct  of  the  water  than  the  absolute  owner  of  the 
land  so  situated,  or  that  the  presumption  in  his  favor  was 
limited  to  the  land,  without  the  water,  except  where  the 
Avater  had  been  already  appropriated. 

It  was  said  by  Chief  Justice  Murray,  in  Cranchdl  v.  Woods, 
8  Cal.,  143: 

"If  the  rule  laid  down  in  Irwin  v.  Phillips,  is  correct  as  to 
the  location  of  mining  claims  and  water  ditches  for  mining 
purposes  and  prioriii/  is  to  determine  the  rights  of  the 
respective  parties,  it  is  difficult  to  see  why  the  rule  should 
not  apply  to  all  other  cases  where  laud  or  water  had  been 
appropriated.  The  simple  question  was,  that  as  between 
persons  appropriating  the  same  land,  or  land  and  water 
both,  as  the  case  might  be,  that  the  subsequent  appropriator 
takes,  subject  to  the  rights  of  the  former. 

"But  an  appropriation  of  land  carries  with  it  the  water  on 
the  land,  or  a  usufruct  in  the  water,  for  in  such  cases  the 
party  does  not  appropriate  the  water,  but  the  land  covered 
with  water.  If  the  owners  of  the  mining  claim,  in  the  case 
of  Irwin  v.  Phillips  had  first  located  along  the  bed  of  the 
stream,  they  would  have  been  entitled,  as  riparian  proprie- 
tors, to  the  free  and  uninterrupted  use  of  the  water,  without 
•my  other  or  direct  act  of  appropriation  of  the  water,  as  con- 
tradistinguished from  the  soil.  If  such  is  the  case,  why 
would  not  the  defendant,  who  has  appropriated  land  over 


73 

whii.'h  a  natural  stream  Howed,  be  held  to  have  appropriated 
the  water  of  such  stream,  as  an  incident  to  the  soil,  as 
against  those  who  sabsequently  attempt  to  divert  it  from  its 
natural  channels  for  their  own  purposes. 

"One  who  locates  upon  public  lands  with  a  view  of  appro- 
priating them  to  his  own  use,  becomes  the  absolute  owner 
thereof  as  against  every  one  but  the  Government,  and  is  en- 
titled to  all  the  privileges  and  incidents  which  appertain  to 
the  soil,  subject  to  the  single  exception  of  rights  anteced- 
ently acquired.  He  may  admit  that  he  is  not  the  owner  in 
fee,  but  his  possession  will  be  sufficient  to  protect  him  as 
against  trespassers.  If  he  admits,  however,  that  he  is  not 
the  owner  of  the  soil,  and  the  fact  is  established  that  he 
acquired  his  right  subsequent  to  those  of  others,  then,  as 
both  rest  for  their  foundation  upon  appropriation,  the  sub- 
sequent locator  must  take  subject  to  the  rights  of  the  former, 
and  the  rule  qui  prior  est  i)i  tempore  potior  est  injure,  must 
apply." 

The  learned  Judge  then  proceeds  to  speak  of  the  al- 
leged evil  consequences  of  the  rule  he  had  laid  down,  say- 
ing: 

"Let  us  examine  the  effect  of  such  a  rule  for  a  moment 
and  see  if  the  consequences  which  the  respondent  predicts, 
viz:  the  destruction  of  the  use  and  value  of  ditch  property 
in  the  mines,  Avill  necessarily  flow  from  it.  A  has  located 
mining  claims  along  the  bed  of  a  stream,  before  any  water 
ditch  or  flume  has  been  constructed;  will  any  one  doubt  that 
he  should  have  the  free  use  of  the  water,  as  against  subse- 
quent locators  of  either  mining  claims  or  canals'?  Or,  sup- 
pose he  had  located  a  farm,  and  the  water  passing  through 
his  land  was  necessary  for  the  purposes  of  irrigation,  is  not 
this  purpose  just  as  legitimate  as  using  the  water  for  mining? 
It  may  or  may  not  be  equally  as  profitable,  but  irrigation 
for  agricultural  purposes  is  sometimes  necessary  to  supply 
natural  wants,  while  gold  is  not  a  natural,  but  an  artificial 
want,  or  a  mere  stimulant  to  trade  and  commerce. 

'"If  it  is  understood  that  the  location  of  land  carries  with 
it  all  the  incidents  belonging  to  the  soil,  those  who  construct 
water  ditches  will  do  so  with  reference  to  the  appropriations 
of  the  public  domain  that  have  been  previously  made  and 
the  rights  that  have  been  already  acquired,  with  a  full  know- 
ledge of  their  own  rights  as  against  subsequent  locators." 
(Id.,  143-1.) 

Crandallx.  Woods  very  distinctly  decides  that  as  between 
an  occupant  of  riparian  land  (part  of  the  public  lands  of  the 
United    States)    and    a    subsequent    appiopriator    of    the 


74 

waters  of  the  stream  the  former  may  assert  the  riparian 
right. 

It  is  claimed,  however,  that  so  far  as  that  case  decides 
that  the  riparian  occupant  may,  under  such  circumstances, 
assert  a  right  to  tlie  flow  of  the  water,  beyond  the  extent  to 
whicli  he  has  actually  appropriated  the  same  for  irrigation 
or  other  useful  purposes,  it  has  been  reversed  in  later  adju- 
dications, if  not  expressly  yet  by  necessary  implication. 

In  some  of  the  subsequent  California  cases,  Avhere  the 
riparian  owner  claimed  in  his  pleading,  and  relied  at  the 
trial  on  an  actual  appropriation  of  water,  the  Court  con- 
tined  its  inquiry  to  the  existence  or  non-existence  of  the 
facts  alleged.  Thus  in  McDoitald  v.  Bear  Elver  (13  Cal., 
"220),  one  of  the  parties,  although  in  possession  of  a  tract 
through  Avhich  the  water  course  ran,  claimed  an  actual  prior 
appropriation  of  water  for  turning  his  mill.  It  may  be  ob- 
served, however,  that  at  the  common  law,  the  extent  of  the 
mill-owner's  right  might  depend  in  part  on  the  actual  erec- 
tion and  size  of  his  dam,  etc.  And,  since  the  exercise  of 
the  particular  right  might  depend  on  affirmative  acts,  the 
case  of  Avater  for  a  mill  might  differ  perhaps  in  its  nature, 
or  extent  rather,  from  that  of  the  riparian  owner  whose 
lauds  are  naturally  irrigated  by  the  flow.  American  Com- 
j^atit/  \.  Jinni/'ord  {2('i  Cal.,  360),  was  an  action  at  law  for 
damages  in  which  the  plaintifl"  claimed  as  an  appropriator 
of  water  through  a  ditch.  The  defendants  answered  that 
long  prior  to  the  location  of  plaintiff's  ditch  and  dam,  they 
had  located  and  worked  in  the  creek  certain  mining  claims 
whereby  they  became  entitled  to  the  use  and  posses-ion  of 
the  waters  of  the  creek,  or  so  much  thereof  as  might  be- 
come necessary  for  their  mining  claims — as  prior  appropri- 
aiorsof  the  icattr.  Moreover  the  general  verdict  in  favor  of 
the  plaintifl"  included  a  tiudiug  that  the  mining  claims  were 
not  located  and  worked  prior  to  the  plaintiii"s  appropria- 
tion. 

In  Yankee  Jim  v.  Crart/  (25  Cal.,  oO-l),  it  was  said  that  the 
use  of  a  water  course  on  the  public  mineral  lands  may  be 
held,  granted,  abandoned  or  lost  by  the  same  means  as  a 
right  of  the  same  character  issaiHf/  unl  of  Jands  to  ivJiich  a 
private  title  exists. 

In  Kinij  v.  Hill  (8  Cal.,  33),  and  Bear  liiver  v.  York  (Id., 
339),  it  was  held  that,  where  the  constructor  of  a  ditch  had 
diverted  water  he  could  not  complain  of  the  muddying  of  it 
by  the  working  of  a  mine  above.  To  permit  this,  the  Court 
said,  would  be  practically  to  deprive  the  miner  of  the  use 
of  the  water  in  his  business;  and  any  injury  from   the  inci- 


75 

dental  fouling  of  the  water  was  damnun  absque  injuria.  But 
in  Hill  V.  Smith  (27  Cal.,  476),  where  water  was  appropriated 
through  a  ditch,  and  a  mining  claim  was  afterwards  woiked 
above,  it  was  decided  that  the  miner  had.  no  right  to  work 
his  claim  in  such  manner  as  to  mingle  mud  and  sediment 
with  the  water  so  as  to  fill  up  the  ditch  and  reservoirs,  and 
thus  to  lessen  their  capacity  and  increase  the  expense  of 
cleaning  them  out;  that  the  prior  appropriator  of  the  water 
was  entitled  to  its  use  and  enjoyment /or  the  purposes  for 
lohicli  he  claimed  it. 

Pope  V.  Kiuman  (54  Cal.,  3),  was  an  action  to  quiet  title 
to  the  flow  of  a  stream,  the  plaintiti'  being  the  owner  of 
riparian  lands  by  grant  from  Mexico.  Held:  that  the  plain- 
tiff had  an  interest  in  the  living  stream  which  flowed  over 
his  land,  called  the  "riparian  rigiit;"  and  that  the  defendant, 
by  mere  diversion  could  not  deprive  him  of  that  interest  or 
usufruct. 

Zimler  v.  San  Luis  Company  {pi  Cal.,  221),  not  only  rec- 
ognizes the  riparian  right,  the  land  not  being  public  land, 
but  holds  that  a  recital  in  a  deed  that  the  grantee  is  about 
to  divert  the  waters  of  a  certain  creek  (which  flows  through 
the  grantor's  land)  and  to  appropriate  the  same,  followed 
by  a  grant  of  a  right  of  way  to  conduct  water  over  the  land 
of  the  grantor,  does  not  estop  the  grantor  from  denying  the 
right  of  the  grantee  to  divert  the  water. 

As  we  understand  Ferrea  v.  Knipe  (28  Cal.,  340),  the  ap- 
pellant made  the  claim  that  the  doctrine  of  *'  appropria- 
tion," applicable  to  controversies  on  the  public  lauds,  was 
also  the  controling  doctrine  in  a  suit  between  private  owners 
on  the  samestream.  The  Court  held  that  the  common-law  rule 
obtained,  and  that  the  inferior  riparian  proprietor  was  en- 
titled to  the  natural  flow,  undiminished,  except  by  the  use 
of  the  superior  proprietor  for  domestic  purposes  and  rea- 
sonable irrigation. 

So  far  as  the  cases  cited  relate  to  the  adverse  claims  of 
possessors  of  land  or  water  on  the  public  lands,  no  one  of 
them  by  its  terms  or  by  necessary  implication  overrules 
Crandall  v.  Woods. 

It  is  intimated,  however,  that  that  case  should  now  be 
overruled  as  not  in  harmony  with  the  reasons  which  in- 
duced the  Courts  to  adopt  the  rule  giving  the  preference  to 
the  prior  possessor.  It^is  said  that  the  right  acquired,  with 
great  expenditure  of  money  and  labor,  by  the  ditch-owners, 
ought  not  to  be  restricted  by  the  occupant  of  a  tract  of  arable 
or  grnzing  land.  The  suggestion  repeatedly  returns  that 
the  amount  of    money   invested   by  the    respective    parties 


76 

should  liave  its  influence  iu  determining  their  rights,  or  at 
least,  in  fixing  the  rule  by  which  their  rights  are  to  be  de- 
termined. The  same  suggestion  (timt  the  amounts  ex- 
pended under  the  implied  license  of  the  United  States 
should  control  in  fixing  the  rule  of  right),  was  urged  in  the 
"debris  cases,"'  but  seems  to  have  received  little  considera- 
tion in  the  courts  of  the  State  or  of  the  United  States.  In 
the  case  of  an  occupant  of  land,  as  in  the  case  of  an  appro- 
priator  of  water,  the  decisions  are  based  upon  the  presump- 
tion that  the  United  States  has  made  a  grant  which,  in  fact, 
it  has  not  made.  The  effect  of  the  presumed  grant  of  land, 
over  which  water  flowed,  was  logically  ascertained  (in  Craii- 
dall  V.  Woods)  by  reference  to  the  principles  of  the  common 
law;  according  to  which  every  part  of  the  land  and  all  its 
incidents  passed  by  the  grant. 

If  we  were  prepared  to  say  that  CraadaU  v.  Woods  was 
wrongly  decided,  still  there  is  good  reason  why,  if  wrongly 
decided,  it  ought  not  to  be  overruled  in  this  case.  The 
rulings  of  the  State  courts,  with  reference  to  controversies 
on  the  public  lands  while  they  remain  such,  cannot  of 
themselves  operate  to  deprive  tlie  State  of  the  benefit  of  the 
grant  of  the  waters  of  streams  flowing  over  the  land  granted 
by  the  Act  of  September  28,  1850;  nor  operate  upon  subse- 
quent legislation  of  the  Congress  of  the  United  States  so 
that  such  legislation  shall  retroact  and  deprive  the  State  of 
its  vested  rights. 

If  the  decisions  referred  to  are  applicable  (o  lands  be- 
longing to  the  State,  yet,  since  they  are  applicable  only  to 
controversies  between  adverse  claimants  to  the  possession 
they  do  not  limit  the  right  or  title  of  the  grantees  of  the 
State.  The  title  of  the  State's  grantees  depends  upon  the 
State  laws  providing  for  the  disposition  of  its  lands. 

The  comiiwii  law  as  to  the  riparian  rights  was  not  abrogated  by 
certain  statutes  of  the  State,  applicable  to  a  district  of  coun- 
try within  ichich  is  included  the  County  of  Kern;  vor  was 
the  Stcde  estopped  by  such  statutes  from  asssrting  its  right 
to  the  flow  of  a  naturcd  stream,  from  tlnd  district,  t<>  ami 
over  the  lands  granted  to  the  State  by  Hie  Act  of  Congress 
of  1850. 

From  what  has  been  said  it  appears  that  the  respondent 
has  not  derived  from  tlie    United  Stales  a  right  to  divert  the 


77 

water  of  a  flowing  stream  from  the  lauds  granted  to  tlie 
State  in  1850,  or  from  the  premises  of  a  grantee  of  the  State 
to  a  portion  of  those  hinds.  It  is  in  order  to  inquire  whether 
the  State  itself  has  authorized  such  diversion. 

It  is  claimed  that,  so  far  as  the  territory  comprised  within 
Kern  County  is  concerned,  the  common-law  doctrine  of 
riparian  rights — if  it  ever  existed — does  not  exist,  but  has 
been  repealed  and  the  law  of  "appropriation"  adopted  by 
certain  statutes. 

The  County  of  Kern  was  created  by  the  Act  of  ApvW  2, 
1866,  which  took  effect  June  2,  1866.  It  was  formed  of  por- 
tions of  Tulare  and  Los  Angeles  counties.  On  the  15tli  d'.\y 
of  May,  1851,  an  Act  was  passed  (Stats.  1854,  p.  76)  pro- 
viding for  the  election  in  each  township  of  certain  counties 
(including  Tidare  and  Los  Angeles)  of  a  Board  of  three 
"  Water  Commissioners"  and  an  overseer.  The  Commis- 
sioners were  to  examine  streams  and  apportion  their  waters 
"among  the  inhabitants  of  their  district;"  on  petition  to 
lay  out  and  construct  ditches,  etc.  The  overseers  were 
to  execute  the  orders  of  the  Commissioners,  superintend 
works  directed  by  them,  and  see  that  the  water  was  kept 
clear  and  the  ditches  in  repair.  Section  14  of  the  Act  pro- 
vided :  "No  person  or  persons  shall  divert  the  waters  of  any 
river,  creek  or  stream  from  its  natural  channel  to  the  detri- 
ment of  any  other  person  or  persons  located  below  them  on 
any  such  stream.''' 

February  19,  1857,  April  28,  1860,  and  again  February 
21,  1861,  the  Act  of  May  15,  1854,  w^as  amended,  but  not  so 
as  to  affect  any  question  involved  in  the  present  case. 
(Statutes  1857,  p.  29;  Stats.  1860,  p.  385;  Stats.  1861,  p.  31.) 

The  2d,  3d,  and  14th  Sections  of  the  Act  of  May,  1854, 
were  amended  by  the  Act  of  April  10,  1862.  (Stats.  1862,  p. 
235).  The  2d  Section,  as  amended,  provided  that  the  Super- 
visors, instead  of  the  County  Judge,  should  order  the  elec- 
tion of  the  Commissioners,  etc.  The  3d  Section  gave  the 
Commissioners  power  to  determine  what  watercourses  ought 
"to  be  appropriated  to  the  public  use,"  to  apportion  the 
water,  etc.  And  the  14th  Section,  as  amended  —the  3d  Sec- 
tion of  the  amendatory  Act — declared :  "No  person  or  persons 
shall  divert  the  waters  of  any  river,  creek  or  stream  from  its 
natural  channel,  to  the  detriment  of  any  other  person  or  persons 
located  below  them  on  any  such  stream  unless  previous  com- 
pensation be  ascertained  and  paid  therefor,  under  the  pro- 
visions of  this  Act,  or  under  the  provisions  of  other  laws  of 
this  State,  aiUhorizing  the  taUny  of  private  property  for  public 
uses.''' 


78 

It  would  be  difficult  to  invent  a  combination  of  words 
which  would  more  explicitly  recognize  a  property  to  the  flow 
of  the  stream  in  the  riparian  owners  below  the  point  of  di- 
version. 

The  Statutes  of  1854  and  the  amendments  authorized  (or 
attempted  to  authorize)  the  Commissioners  to  decide 
whether  a  water  course  should  be  condemned  or  "  appro- 
priated" to  the  i3ublic  use,  and  to  divert  and  apportion  the 
waters  of  the  stream  so  a[)j)ropriated.  Evidently  by  the 
persons  who  are  not  to  be  detrimented,  without  compensa- 
tion, is  meant  the  inferior  riparian  proprietors,  whose  prop- 
erty in  the  waters  may  be  taken  for  the  "public  use"  on 
payment  of  due  compensation,  according  to  the  laws  of  the 
State  "  authorizing  the  taking  of  private  pyoperty  for  pub- 
lic uses.''  If  not  they  wliom  else?  The  scheme,  if  valid, 
necessarily  excludes  any  diversion  at  all  by  a  private  per- 
son of  waters  of  a  stream  "appropriated  to  the  public 
use"  by  the  Commissioners,  and  any  diverson  or  appropri- 
ation through  ditches  other  than  those  made  under  the  di- 
rection of  the  Commissioners.  The  persons  then  who  are 
prohibited  from  diverting  water  to  the  injury  of  those  be- 
low, except  on  due  compensation,  are  the  Commissioners 
and  those  acting  under  command  of  the  Commissioners. 

Nor  can  it  be  said  that  everybody  else  might  be  made  to 
suffer  detriment,  without  compensation,  by  diversion  of 
water  by  the  Commissioners,  except  only  those  persons  who 
had  "appropriated"  waters  of  the  stream  prior  to  the  Act 
of  1854,  and  who  continue  to  use  the  same.  If  the  inten- 
tion had  been  to  protect  or  rather  to  recognize  the  rights  of 
that  class  only  (if  any  such  class  existed)  we  cannot  but  be- 
lieve that  tiie  purpose  would  have  been  expressed  in  ap- 
propriate language.  The  language  of  the  provision  is  sweep- 
ing, and  while  perhaps  broad  enough  to  include  non-riparian 
proprietors  who  had  diverted  water  prior  to  the  Act,  is  pe- 
culiarly applicable  and  certainly  includes  those  who  had 
acquired  tiie  title  to  riparian  lands  prior  to  a  diversion,  and 
also  iu3ludes  prior  riparian  occupants  --"No  person  or  per- 
sons s/ioZ/ divert"  etc.  The  term  "location"  has  been  very 
generally  applied  to  occupations  of  portions  of  the  public 
domain,  while  diverters  of  waters  have  been  called,  and 
throughout  the  elaborate  briefs  of  counsel  herein,  are 
called  "appropriators."  The  amendatory  statute  not  only 
recognizes  the  riparian  rights  of  those  in  possession  of 
lands  through  which  the  stream  "appropriated  to  public 
use"  may  pass,  but  is  a  legislative  construction  of  the  words 
(if  any  such  construction  were  needed)  found  in   the   14th 


70 

Section  of  tlie  origiual  Act  of  1854— "to  the  detriment  of 
any  person  or  persons  located  below  them  in  sucli  stream." 

The  Act  of  April  4,  1864  (Statutes  of  1863-64,  p.  375), 
provided  for  the  election  of  three  Water  Commissioners  in 
the  County  of  Tulare,  etc.  It  also  contains  the  clause  "ISo 
person  or  persons  shall  divert  the  waters  of  any  river  or 
stieam  from  its  natural  channel,  to  the  detriment  of  anv 
person  or  persons  located  below  them  on  the  same  stream." 
l^Sec.  10.) 

March  20,  1866,  certain  sections  of  the  Act  of  1864  were 
amended.  (Statutes  of  1865-66,  p.  313.)  By  the  amend- 
ments the  Water  Commissioners  and  overseers  were  shorn 
of  their  powers  and  duties.  For  the  first  time  water  "com- 
panies," and  the  "  President  or  authorized  agents  "  of  such, 
are  spoken  of.  The  Commissioners  were  no  longer  required, 
upon  the  petition  of  "  those  interested,"  to  lay  out  ditches 
and  apportion  the  water  "among  the  persons  using  the 
same,"  in  proportion  to  the  amount  of  land  "each  person 
may  wish  to  irrigate;"  no  longer  empowered  to  levy  a  labor 
tax  on  such  persons,  and  no  longer  required  or  permitted  to 
publish  a  schedule  of  the  number  of  hours  during  which 
each  of  such  persons  should  be  entitled  to  use  water.  Their 
duty  was  simplified,  and  was  limited  to  the  appointment,  as 
overseer  of  a  ditch,  of  the  person  designated  hij  the  oivners  of 
sueh  ditch.  The  services  of  the  Commissioners,  instead  of 
being  paid  for  as  provided  in  the  Act  of  1864,  out  of  a  tax 
collected  of  those  supplied  in  proportion  to  the  quantity  of 
water  used  by  each,  were  to  be  compensated  "by  the  par- 
ties requiring  their  services."  (Sec.  4.)  And,  in  this  con- 
nection, it  may  be  remarked,  it  was  piudeutly  provided: 
"No  ditch  shall  hereafter  be  taken  out  of  any  stream,  in  the 
waters  of  which  different  persons  have  an  interest,  without 
leave  of  said  Commissioners." 

And  by  the  amendments  (Sees.  3,  4),  the  overseers  no 
longer  had  the  duty  imposed  upon  them  of  examining 
ditches,  or  of  estimating  the  labor  necessary  to  put  them 
in  repair,  or  of  reporting  the  same  to  the  Commissioners, 
together  with  the  capacity  of  the  ditches  and  the  (piantity 
of  ground  irrigated  by  each,  or  of  ascertaining  that  the 
Avater  was  used  as  apportioned,  and  that  the  required  hibor 
Avas  properly  expended.  Instead  of  all  this  the  overseers 
were  simply  to  execute  the  orders  of  the  persons  employing 
them,  by  whom  they  were  to  be  paid  "such  compensation 
as  may  be  agreed  upon." 

Thus  by  the  amendatory  act  the  Commissioners  and  Over- 


80 

seers  became  the  mere  agents  of  the  owners  of  ditches  or 
of  "companies."  For  Section  5  of  the  Act  of  1864  was 
substituted  matter  foreign  to  the  original  section,  the  sub- 
stituted matter  being:  "Each  overseer  shall  every  three 
months  (each  counting  from  the  date  of  his  appointment) 
make  up  a  statement  in  writing  of  the  number  of  days  that 
he  has  been  engaged  in  (he  discharge  of  his  duties,  to- 
gether with  the  amount  due  him  as  compensation  tiierefor, 
and  upon  tlie  approval  of  the  same  by  the  President  or 
aiifhorked  agent  of  the  company  employing  him,  shall  appor- 
tion the  same  to  the  different  members  of  such  company, 
juo  rata,  in  jjroportion  to  the  interest  of  each  therein;  and 
thereupon  shall  have  the  right  of  action  against  each  owner 
in  the  ditch  for  which  he  is  overseer  for  the  amount  so  ap- 
portioned to  such  owner."     (Stats.  1865-6,  p.  313.) 

And  by  Section  6  of  the  xAct  of  1866  (amending  Section  7 
of  the  Act  of  1864)  it  is  provided: 

"  Whenever  a  majority  in  interest  uf  the  owners  in  any 
ditch  company,  or  their  authorized  agent,  shall  deem  it 
neressary  to  repair,  enlarL/t  or  extend  their  ditch,  they  shall 
cause  a  notice,  either  written  or  verbal,  to  be  served  upon 
each  owner  therein,  specifying  a  time  to  commence  work 
thereon;  and  any  owner  therein  neglecting  or  refusing  to 
perform  his  pi  oportion  of  such  labor  or  pay  his  proportion  of 
the  cost  thereof,  .shall  forfeit  his  right  to  the  use  of  any 
water  from  such  ditch  until  such  time  as  he  pays  the  same 
to  the  person  or  persons  performing  his  proportion  of  such 
labor,  together  with  10  per  cent,  per  month  thereon  addi- 
tional. The  number  of  hours  constituting  a  day's  labor  and 
the  value  thereof  shall  be  determined  by  the  respective 
water-ditch  companies  in  the  rules  and  regulations  they  may 
severally  adopt,"  etc.     (Stats.  18(15-66,  p.  314.^ 

The  Act  of  1864  tben,  as  amended  by  the  Act  of  1866,  de- 
clares the  law  which,  as  claimed  by  counsel,  has  been  sub- 
stituted for  the  common  law.  But  the  Act  as  amended  (if 
it  be  conceded  to  be  valid)  does  not  adopt  any  general  rale  of 
appropriation.  It  seems  to  have  been  studiously  prepared 
in  the  interest  of  the  companies  then  existing,  with  a  proviso 
th  >t  the  Commissioners — employed  and  paid  by  those  of  such 
companies  as  might  choose  to  employ  ihem— may  permit  new 
ditches  to  be  dug. 

If  the  Act  of  1866  is  in  force  it  should  at  least  be  made  to 
appear  that  the  defendant  has  acquired  rights  under  it.  If 
the  Act  could  be  construed  as  declaring  the  assent  of  thj 
State  to  the  diversions  of  watt-r  then  existing,  or  to  such  di- 
versions as  might  subsequently  be  made,  with   the  consent 


81 

of  the  Commissiouers  named  iu  the  Act,  the  assent  of  the 
State  was  limited  to  such  diversions.  It  nowhere  appears 
that  the  respondent  obtained  the  consent  of  the  Commis- 
siouers to  the  construction  of  its  works;  and  as  we  have 
seen,  the  Act  expressly  prohibits  any  new  ditch  or  canal 
"  with(<ut  leave  of  said  Commissioners."  (Section  2,  Sub- 
division 3.) 

Sections  7  and  8  relate  to  the  internal  management  of  the 
companies  or  corporations,  the  obligations  of  its  members 
to  each,  and  the  mode  of  enforcing  them.  The  rest  of  the 
Act  provides  for  the  discharge  of  fnnctions  by  the  Commis- 
sioners and  overseers,  as  servants  of  the  companies. 

The  intent  of  the  Legislature  to  change  the  previous 
law  as  to  riparian  rights,  or  to  estop  the  State  and  its  grant- 
ees from  asserting  them,  ought  to  be  made  to  appear  dis- 
tinctly. But  the  saving  clause  of  Section  10  of  the  Act  of 
]  864  Avas  not  repealed  by  the  Act  of  1866,  and  that  section 
prohibits  any  diversion  to  the  detriment  of  those  located 
below  on  the  stream.  Moreover,  Section  10  of  the  Act  of 
1864  is  almost  precisely  like  Section  14  of  the  Act  of  1854, 
and  the  iirst  clause  of  Section  3  of  the  Act  of  1862.  And 
the  first  clause  of  Section  3  of  the  Act  of  1862  is  interpreted 
If^gislatively,  by  the  last  clause  of  the  same  section,  as  in- 
tended to  protect  the  lower  riparian  proprietor;  except  that 
his  property-right  in  the  water  might  be  condemned,  on  due 
compensation,  "under  the  provisions  of  the  laws  of  this 
State  authorizing  the  taking  of  private  propertj^  for  public 
uses."     (Stats.  1862,  p.  2  5,) 

The  omission  of  the  hist  clause  of  the  .-entence  in  the  sub- 
sequent laws  is  not  to  be  construed  as  a  withdrawal  of  all 
protection  from  the  rip;irian  owners — (among  whom  might 
be  other  persons  ihan  the  State) — but  rather  as  indicating 
an  intention  to  make  that  protection  absolute.  It  is  to  be 
presumed  that  in  amending  the  section  the  members  of  the 
Legislature  were  influenced  rather  by  a  doubt  of  the  validity 
or  propriety  of  its  last  clause,  t>an  by  an  intent  arbitrarily 
to  take  from  the  liparian  proprietors  a  valuable  right  or  to 
deprive  a  whole  cla.-s  o.''  a  right  they  had  previously  enjoyed. 
And  the  omission  slould  thus  be  construed  even  if  it  might 
be  held  as  matter  of  law  that  the  deprivation  of  the  right 
could  not  constitutionally  b  enforced  against  those  who  had 
already  located  on  the  stream  when  the  statutes  were  passed. 
In  ascertaining  the  meaning  of  the  law  we  find  that  the  pro- 
tection accorded  was  clearly  intended  to  apply  to  locations 
already  made  when  each  of  the  statutes  was  passed,  and  to 
locations  which  should  be  made  prior  to  any  subsequent 
appropriation. 


82 

XI. 

Section  1,422  of  the  Civil  Code  ("Tlie  oighfs  of  riparian 
'proprietors  are  not  affected  hy  the  provisions  of  this  title'')  is 
protective,  not  only  of  riparian  rights  existing  when  the 
Code  ivas  ad<>pte(t,  hut  also  of  the  riparian  rights  of  those 
who  acquired  a  title  to  land  from  the  State,  after  the  adop- 
tion of  the  Code  and  before  an  appropriation  of  loater  171 
acc<  rdance  ivith  the  Code  provisions. 

Neither  a  grantee  of  the  United  States  nor  the  grandee  of 
a  private  person,  loho  loas  a  riparian  oioner  tchen  the  Code 
was  adoptt<t,  need  rely  for  ptrotection  on  Section  1,422. 
Such  persons  are  protected  by  constitutional  principles. 

Ihe  Slatt  might  have  reserved  from  her  grants  of  land  the 
tvaters  foiuing  through  them,  for  the  benefit  of  those  who 
should  subsequently  oppn'Ojiriate  the  ivaters.  But  the  State 
has  not  made  such  rtstrvatiori. 

The  tvater  rights  of  the  State,  as  riparian  oioner,  are  'not 
reserved  to  the  State  by  Section  1,422,  because  {loherevtr  the 
State  has  not  already  i^arted  loitk  its  right  to  those  tuho  have 
acquirnl  frim  her  a  legal  or  equitable  title  to  riimrian 
lands)  the  proiisiuns  of  the  Code  confer  the  State  rights 
to  the  floiv  on  those  appropriating  luater  i)i  the  manner 
prescribtd  by  the  Code. 

It  is  conteuded  by  respondent  that  the  Civil  Code  i^ives  to 
it  a  right  to  the  water  superior  to  that  of  the  riparian  pro- 
pria tor  belo\v;  that,  as  jigainst  an  ap|)ropriator  under  the 
the  Code,  one  who  has  acquired  a  title  to  lands  from  the 
State  (subsequently  to  the  Code  althouj.li  prior  to  the  water 
appropriation)  has  no  right  in  or  to  any  of  the  water. 

Title  8  of  Part  IV,  Division  2  of  the  Civil  Code,  reads: 

"  Sec.  1,410.  The  right  to  the  use  of  running  water  flowing 
in  a  riv  r  or  stream,  or  down  a  canyon  or  ravine,  may  be 
acquired  by  a  propriation. 

"  Sec.  1,411.  The  appro))riation  must  be  for  some  useful 
or  beneficial  purpose,  and  Mhen  the  appropriator  or  his  suc- 
cessor in  interest  ceases  to  use  it  for  such  a  jDurpose  the 
right  ceases. 

"  Sec.  1,412.  The  person  entitled  to  the  use  may  change 
the  place  of  diversion,  if  others  are  not  injured  by  such 
change,  and  may  extend  the  ditch,  flume,  pipe  or  aqueduct 


^3 

by  which  the  diversion  is  made  to  places  beyond  that  where 
the  first  use  was  made. 

"Sec.  1,413.  T_:e  water  appropriated  may  be  tamed  into 
the  channel  of  another  stream  and  mingled  with  its  water, 
and  then  reclaimed;  but  in  reclai.ning  it  the  water  already 
appropriated  by  another  must  not  be  diminished. 

"  Sec.  1,414.  As  between  appropr'ators,  the  one  first  in 
time  is  the  first  in  right. 

"  Sec.  1,415.  A  person  desiring  to  appropriate  water 
must  post  a  notice,  in  writing,  in  a  conspicuous  place  at  the 
point  of  intended  diversion,  stating  therein: 

"1.  That  he  claims  the  water  there  flowing  to  the  extent 
of  (giving  the  number)  inches,  measured  under  a  4-inch 
pressure. 

"  2.  The  purposes  for  which  he  claims  it,  and  the  place 
of  intended  use. 

"  3.  The  means  by  which  he  intends  to  divert  it,  and  the 
size  of  the  flume,  ditch,  pipe  or  aqueduct  in  which  he  in- 
tends to  divert  it. 

''A  copy  of  the  notice  must,  within  ten  days  aftn*itis 
posted,  be  recorded  in  the  office  of  the  Recorder  of  the 
county  in  which  it  is  posted. 

"  Sec.  1,416.  Within  sixty  days  after  the  notice  is  posted, 
the  claimant  must  commence  the  excavation  or  construction 
of  the  works  in  which  he  intends  to  divert  the  water,  and 
must  prosecute  the  work  diligently  and  uninterruptedly  to 
completion,  unless  temporarily  interrupted  by  snow  or  rain. 

"Sec.  1,417.  By  '  completion' is  meant  conducting  the 
waters  to  the  place  of  intended  use. 

"Sec.  1,418.  By  a  compliance  with  the  above  rules  the 
claimant's  right  to  the  use  of  the  water  relates  back  to  the 
time  the  notice  was  posted. 

"Sec.  1,419.  A  failure  to  comply  with  such  rules  de- 
prives the  claimant  of  the  rights  to  the  use  of  the  water  as 
against  a  subsequent  claimant  -who  complies  therewith. 

"  Sec.  1,420.  Persons  who  have  heretofore  claimed  the 
right  to  water,  and  who  have  not  constructed  works  in  which 
to  divert  it,  and  who  have  not  diverted  nor  applied  it  to  some 
useful  purpose,  must,  after  this  title  takes  effect  and  within 
twenty  days  thereafter,  proceed  as  in  this  title  provided, 
or  their  right  ceases. 

"  Sec.  1,421.  The  Recorder  of  each  county  must  keep  a 
book,  in  which  he  must  record  the  notices  provided  for  in 
this  title. 

"  Sec.  1,422.  The  rijhts  of  riparian  'proprietors  are  not  af- 
fected by  the  provisions  of  this  title." 


84 

The  Itli  section  of  the  Civil  Code  declares  that  the  rule 
that  statutes  in  derogation  of  the  common  law  shall  be 
strictly  construed  has  no  application  to  the  Code.  And  it  is 
added.,  "The  Code  establishes  the  law  of  this  State  respect- 
ing the  subjects  to  which  it  relates,  and  its  provisions  are 
to  be  liberally  construed  with  a  view  to  effect  its  objects 
and  to  promote  justice." 

Counsel  for  respondent  contend  that  Section  1,410  of  the 
Civil  Code  promulgates  a  general  law  declaring  the  doctrine 
of  appropriation  to  be  the  law  of  the  land,  and  argue  that, 
if  it  be  admitted,  the  Legislature  could  not  divest  the 
owner  of  the  banks  c-f  a  water-course  of  his  riparian  rights, 
the  doctrine  of  appropriation  was  adopted  as  the  general 
law,  applicable  to  all  public  laiids  of  the  State  and  of  the 
United  States  from  the  point  of  time  when  Section  1,410 
was  enacted.  And,  it  is  said,  the  whole  purpose  of  Section 
1,422 — "  The  rights  of  riparian  proprietors  are  not  affected 
by  the  provisions  of  this  title " — is  subserved  by  saving 
rights  then  vested. 

It  is  urged  that  the  words  "rights  of  riparian  proprietors" 
are  used  either  in  a  generic  sense,  as  indicating  that  prin- 
ciple of  law  known  generally  as  the  doctrine  of  riparian 
rights;  or  el-^e  they  are  used  in  a  more  limited  sense  of.  pri- 
vate rights  of  individuals,  who  then  (when  the  Code  was  en- 
acted) owned  lands  on  the  banks  of  streams  whose  source 
was  on  or  which  flowed  over  public  lands.  That  it  is  too  self- 
evident  for  serious  question  that  the  words  cannot  have 
been  used  in  the  more  enlarged  sense;  for  give  them  that  in- 
terpretation, aud  you  have,  in  the  same  statutory  enact- 
ment, a  declaration  of  two  diametrically  antagonistic  prin- 
ciples— the  doctrine  of  appropriation  and  the  doctrine 
of  riparian  rights — doctrines  which  cannot  coexist.  But 
(it  is  said),  giving  the  words  the  other  and  more  restricted 
interpretation,  each  and  ail  parts  of  the  statute  harmonize 
one  with  the  other,  aud  the  declaration  of  Section  fxir  is 
respectel.  That  the  law  of  the  St  ite  being  appropriation, 
its  grant  of  the  land,  made  after  the  Code  enactment,  car- 
ries with  it  no  right  to  the  water.  For  since  such  right  can 
only  be  derived  from  some  existing  law,  and  the  Code  has 
abrogated  or  repealed  the  law  of  riparian  rights  (except  to 
the  extent  of  preserving  those  then  existing),  there  is  no 
law  untler  which  the  right  to  the  water  as  part  and  portion 
of  the  title  granted  can  arise. 

As  stated  above,  it  is  claimed  by  respondent  that  by  the 
provisions  of  the  Civil  Code  the  doctrine  of  appropriation 
was  adopted  as  the  general  law  of  the  State,  applicable  to 


85 

all  paUic  lands  of  the  State  aud  the  United  States  from  the 
time  Section  1,410  was  enacted.  But  Section  1,410  is  not 
limited  in  its  application  to  the  public  lan-'s.  Subject  to  the 
saving  or  reservation  clause  of  Section  1,422 — whatever 
that  section  may  mean — Section  1,410  declares  the  law  ap- 
plicable throughout  the  State. 

It  seems  to  be  admitted  that  (conceding  the  rights  of  rip- 
arian proprietors  to  be  measured  by  the  common  law)  ripa- 
rian rights  ah-eady  vested  were  not  taken  away  by  Section 
1,410,  and  could  not  be  taken  awaj-,  except  for  the  public 
use  and  on  due  compensation.  It  must  follow,  independent 
of  Section  1,422,  that  a  purchaser  from  one  who  was  a  ripa- 
rian owner  when  the  Code  provisions  took  effect,  by  pur- 
chase made  after  the  Code  enactments,  would  acquire  all 
the  estate  and  property  of  his  vendor.  Otherwise,  private 
property  would  be  taken  without  duo  process  of  law,  since 
arbitraril}'  to  deprive  the  owner  of  property  of  all  capacity 
to  sell  it  is  to  deprive  bim  pro  taiifo  of  its  benefits.  "The 
right  of  acquiring,  possessing  and  protecting  property  is  in- 
alienable." "No  man  shall  be  deprived  of  his  property 
without  due  process  of  law."  (Const.  1849,  Art.  I,  Sees. 
2-8;  Const.  1879,  Art.  1,  Sec.  IH.)  The  provisions  of  the 
Constitution  arc  intended  effectually  aud  completely  to 
protect  substantial  rights,  aud  cannot  be  frittered  away  by 
indirect  legislation. 

And,  as  we  have  seen,  one  who,  since  the  Acts  of  Con- 
gress of  18f6  and  1870,  receives  a  grant  of  a  portion  of  the 
public  lands  of  the  United  States,  without  special  or  im- 
plied leservation,  takes  subject  only  to  appropriations  of 
water  made  or  initiated  jjriV  to  his  grant.  Let  us  suppose, 
after  the  adoption  of  the  Code,  but  before  any  appropriation 
of  the  w^ater  flowing  to  the  tract  granted,  a  grant  or  patent 
for  land  to  be  issued  by  the  United  States.  Could  Section 
1,410  be  held  to  divest  the  grantee  of  his  right  in  the  flow  of 
the  stream?  True  he  has  accepted  his  grant  in  the  presence 
of  the  State  Statute.  But  the  United  States  has  undertaken 
to  clothe  him  with  the  title  to  the  land  with  the  appropriate 
use  of  the  water  as  part  of  the  land.  Would  not  a  State 
law  which,  in  advance  of  the  grant,  should  attempt  to  take 
from  the  grantee  the  flow  of  the  stream,  acquired  from  or 
s^ought  to  be  conveyed  by  the  United]States,  and  confer  the 
waters  upon  one  who  has  acquired  no*right  to  them  from  the 
United  States,  be  an  interference  with  the  ' '  primary  dis- 
posal "  of  the  public  lands  ?  ' 

We  do  not  find  it  necessary  to  say  that  the  prospective 
provisions  of  the  Code  would  violate  the  obligation  cf  a  con- 


86 

tract.  But  when  the  State  is  prohibited  from  interfering 
with  the  primary  disposal  of  the  public  lands  of  the  United 
States,  there  is  included  a  prohibition  of  an}'  attempt  on  the 
part  of  the  State  to  preclude  the  United  States  from  trans- 
ferring to  its  grantees  its  full  and  complete  title  to  the  land 
granted,  with  all  its  incidents. 

The  same  rule  must  apply  to  homesteaders,  pre-emption- 
ers  and  other  purchasers  under  the  laws  of  the  United 
States.  To  say  that  hereafter  the  purchaser  from  the  United 
States  shall  not  take  any  interest  in  the  water  flowing  to  or 
in  the  trees  on,  or  the  mines  beneath  the  surface  —but 
others  of  our  citizens  shall  have  the  privilege  of  removing 
all  these  things — is  to  say  that  hereafter  the  United  States 
shall  not  sell  the  water,  Avood  or  ores. 

It  would  seem  then  that  the  only  persons  who  would  find 
it  necessary  to  resort  to  Section  1,422  of  the  Civil  ('ode  as 
the  protection  of  their  right  to  the  flow  of  running  waters 
are  the  State  (as  the  owner  of  lands  granted  to  it  by  the 
United  States)  and  grantees  from  the  State;  unless  it  be 
where  the  adverse  parties  are  merely  occupants  of  land 
and  water  respectively  on  the  public  lands  of  the  United 
States  or  of  the  State. 

While  the  common  law  has  been  in  force,  not  only  has  the 
right  of  eminent  domain  been  in  the  State,  but  the  State 
has  been  the  direct  owner  of  the  swamp  aud  overflowed,  as 
well  as  of  other  lands  derived  by  grant  from  the  General 
Government.  The  St  ite  Legislature  has  had  power  not  onl}' 
to  dispose  of  the  lands  and  waters  so  held  separately,  as  a 
private  person  may  dispose  of  his  own,  but  has  had  power 
to  authorize  the  diversion  of  wiiter  from  such  lands,  either 
by  private  pers  us,  the  owners  of  lands  above,  or  by  pri- 
vate persons  on  public  lands  of  the  United  States  lying 
above.  From  the  date  of  such  general  authorization,  a 
<.;rantee  of  land  from  the  State  would  take  subject  to  ap- 
propriations of  water  actually  made,  and,  if  the  statutes 
were  broad  enough  and  operated  a  reservation  of  waters  in 
favor  of  appropriations  which  might  afterward  be  made, 
would  take  -ubject  to  subsequent  appropriations. 

But  the  st  .tutes  of  the  State  cannot  properly  be  con- 
strued as  reserving  from  grants  of  State  land  the  use  of 
the  waters  flowing  thereon  for  the  benefit  of  those  who 
shall  subsequently  take  or  appropriate  them  either  on  or  oft' 
the  State  lands. 

The  State  has  granted  the  waters  running  to  its  own 
lands,  by  authorizing  the  diversion  of  waters  from  its 
lauds,  and,  doubtless,  such  grantees  acquire  the  State  prop- 


87 

ertj  iu  the  waters,  whenever  the  State  has  a  property  in  the 
waters  at  the  time  of  the  grant.  But  c  m  it  he  said  thit, 
from  the  date  of  the  Code,  the  State  reserved  its  waters  in 
trust  for  those  who  shoukl  afterwards   appropriate  them  ? 

Onr  attenti(m  has  been  called  to  no  provision  of  the  laws 
l)roviding  for  the  disposition  of  the  State  lands  which  cou- 
tcinplates  such  reservation.  And  we  see  nothing  in  the 
liw  authorizing  appropriations  of  water  which  can  reasonable 
boar  such  interpretation.  We  must  look  for  the  definition 
of  "riparian  rights  "  — protected  by  Section  1,422 —  to  the 
common  law,  which  (when  not  in  conflict  wit'i  or  repugnant 
to  the  Constitution  and  State  statutes)  had  been  the  law  of 
the  State  for  more  than  twenty  years.  The  section  whicli 
provides  "  the  rights  of  riparian  proprietors  are  not  affected 
by  the  provisions  of  this  title,"  declares  in  effect,  that  those 
ap])ropriating  water  under  the  previous  sections  shall  not 
acquire  the  right  to  deprive  of  the  fi  >w  of  the  stream  those 
who  shall  have  obtained  fiom  the  State  a  title  to  or  right 
of  possession  in  riparian  lands,  before  proceedings  leading 
to  appropriation  shall  be  taken.  Such  is  the  meaning  of 
the  words  employed. 

The  right  to  the  use  of  the  Avaters  as  part  of  the  laud 
once  vested  in  its  private  grantee  the  State  has  no  power  to 
divest  him  of  the  right  except  on  due  compensation.  It  is 
for  those  who  claim  that,  since  the  Co  le  enactments,  ripar- 
ian rights  have  never  vested  in  the  State's  grantees,  to  point 
to  the  statute  which  expressly  so  declares,  or  which  by 
necessary  implication  operates  a  reservation  of  all  the 
waters  on  the  State  lands  for  the  benefit  of  subsequent 
appropriators.  Such  reservation  cannot  be  assumed,  nor 
be  based  on  any  doubtful  interpretation  of  language. 

The  use  of  the  present  tense — "the  rights  of  riparian 
proprietors  a?'e  not  effected"  is  not  sufficient  to  justify  a 
finding  of  a  reservation  by  the  State  of  all  its  waters.  _ 

It  is  difficult  to  believe  that  the  section,  so  far  as  it  aj)- 
plies  to  riparian  lands  not  those  of  the  State,  is  other  than 
declaratory  of  the  pre-existing  law.  It  certainly  was  in- 
tended to  be  declaratory  in  so  far  as  it  announces  the  pro- 
tection of  all  private  persons  who  had  acquired  riparian 
rights  from  any  source  before  the  provisions  of  the  Code 
went  into  operation,  since  (if  the  common-law  right  existed) 
.such  persons  were  protected  independent  of  the  section. 
We  cannot  presume  that  it  was  intended  to  limit  the  pro- 
tection to  those  private  persons  who  had  then  acquired 
riparian  rights  from  the  United  States  (but  not  through  the 
State),  or  from  S])ain  or  Mesict>,  and  to  deprive  the   subse- 


88 

queut  grantees  ofsucli  of  their  rlp:iiian  rights.  The  Legislature 
had  uo  power  to  deprive  of  their  right  to  water  the  subse 
queut  giautees  or  successors  of  those  private  persons  in 
whom  the  right  had  vested  prior  to  the  Code.  The  attempt 
would  have  been  violative  of  constitutional  principles.  As 
the  language  of  Section  1,422  will  bear  a  reasonable  inter- 
pretation which  will  render  it  applicable  everywhere  withiu 
the  limits  of  the  State,  and  to  all  classes  of  riparian  pro- 
}irietors  (without  impiujiug  upon  the  vested  interests  of  any) 
wo  ought  not  to  so  construe  it  as  ihat,  if  enforced  with  re- 
spect to  all,  it  would  deprive  any  man  of  his  constitutional 

Our  conclusion  on  this  branch  of  the  case  is,  that  Section 
1,422  Selves  and  protects  the  riparian  rights  of  all  those  who, 
under  the  laud  laws  of  the  State,  shall  have  acquired  from 
the  State  the  right  of  possession  to  a  tract  of  riparian  land, 
prior  to  the  initiation  of  proceedings  to  appropriate  water  in 
accordance  with  the  provisions  of  the  Code. 

If  Section  1,422  of  the  Civil  Code  were  interpreted  as 
saving  ali  riparian  rights  actually  vested  before  the  section 
took  effect,  the  mere  appropriator  could  acquire  no  rights 
to  water  by  virtue  of  the  provisions  of  the  Code,  but  would 
be  left  to  the  enjoyment  of  such  as  he  might  secure  by  con- 
vention with  the  riparian  proprietors.  If  all  riparian  rights 
existing  when  the  section  was  adopted  were  preserved  by 
Section  1,422,  then  inasmuch  as  both  the  State  and  the 
United  States  were  at  that  time  riparian  owners  the  lands  of 
neither  Government  would  be  affected  by  the  other  sections 
relating  to  water  rigiits;  nor,  of  course,  would  any  subse- 
quent grantee  of  either  Government  be  affected  by  those 
]novisions. 

It  is  contended  by  counsel  for  cqjpelluufs  that  the  rights  of 
the  State  to  the  flow  of  the  waters  on  her  lauds  were  not 
ati'ected  by  the  Code,  for  the  further  reason  that  the  Code 
provisions  were  intended  merely  to  continue  or  supply  a 
rule  for  deciding  disputes  "on  the  public  lands  of  the 
United  States." 

But  we  think  it  was  the  manifest  purpose  of  the  Legisla- 
ture— derivable  from  Title  8,  as  a  whole,  read  in  view  of  the 
judicial  and  legislative  history  of  the  State — that  the  rule 
should  be  the  same  whether  applied  to  mere  occupants  of 
the  lnnds  of  ihe  State  or  of  the  United  States  ;  and  that  the 
riparian  rights  of  the  State,  as  owner  of  lands,  were  not  pre- 
served by  Section  1,422. 

As  we  have  seen,  by  resort  to  the  presumption  of  a  grant 
or  license  from  the  owner  of  the  paramount  title,  our  courts 


89 

from  an  early  day  have  delermiuecl  controversies  between 
occupants  of  waters  or  of  lauds  and  Avaters — on  the  public 
domain  of  the  United  States,  holding  the  prior  possessor  to 
have  the  better  right.  And,  during  its  fiist  session,  the 
State  Legislature  provided  a  mode  hy  which  one  might  ac- 
quire a  constructive  or  statutory  possession  of  a  portion  of 
the  unsurveyed,  and  as  yet  unsalable,  public  lands  of  the 
United  States,  to  be  accepted  by  the  courts  as  proving  a 
right  to  the  possession  against  all  but  the  Government. 
(Act  "prescribing  the  mode  of  maintaining  and  defending 
possessory  actions  on  lands  belonging  to  the  United  States." 
Stats.  185  ),  p.  20-3.)  The  validity  of  such  Acts  so  far  as 
they  affect  mere  intruders  on  the  public  lands,  or  those  en- 
tering thereon  with  the  tacit  consent  of  the  Government, 
has  not  heretofore  been  questioned.  The  right  of  the  prior 
occupant  of  the  land  or  water  on  the  public  domain  of  the 
United  States  being  recognized  by  the  courts,  it  cannot  be 
doubted  that  the  Legislature  had  power  to  establish  or 
change  a  rule  of  evidence,  according  to  which  the  prior  oc- 
cupation is  to  be  proved.  With  reference  to  appropriations 
of  waters  on  public  lands,  for  example,  the  Legislature  had 
power  to  require  that  the  notice  of  appropriation  should 
contain  certain  statements;  that  work  should  be  commenced 
within  a  definite  time,  and  be  completed  within  a  named 
])eriod,  etc.  Neither  the  State  Legislature  nor  the  State  courts 
have  any  inde|)endent  power  to  interfere  with  the  primary  dis- 
posal of  the  public  lands  of  the  United  States,  nor  to  de- 
tract from  the  estates  in  such  lands  granted  under  the  laws 
of  the  United  States.  Nevertheless,  whilst  a  body  of  land 
and  the  waters  thereon  shall  remain  a  portion  of  the  public 
lands  of  the  United  States,  the  rights  of  mere  possessors, 
or  asserted  possessors  thereon,  will  continue  to  be  deter- 
mined, as  between  themselves,  by  the  law  applicable  to  such 
controversies  as  the  same  was  laid  down  by  our  Courts  pre  ■ 
vious  to  the  Code  enactments,  except  so  far  as  it  may  have 
been  modified  by  the  provisions  of  the  Code.  The  legisla- 
tion of  the  State  (with  reference  to  occupations  on  the  pub- 
lic lauds),  like  the  judicial  decisions,  is  based  on  the  pre- 
sumption that  the  General  Government  has  permitted  the 
occupation  of  water,  or  of  land  with  the  water  thereon  as 
the  case  may  be.  But  this  (so  far  as  the  operation  of  the 
State  law  is  concerned),  necessarily  excludes  the  United 
States,  although  a  riparian  owner  Avhen  the  Code  w^as 
adopted,  from  the  saving  clause  of  Section  1,422. 

The  doctrine  of  presumption  is  enforced,    however,   not 
only  on  lands  of  the  United  States,  but  on  lands  of  the  State 


90 

and  of  private  persons.  This  Las  been  the  rule  applied  in 
every  action  of  ejectment  where  the  plaintiff  has  recovered 
on  his  prior  possession.  In  such  cases  it  has  repeatedly 
been  held  that  the  defendant  cannot  be  permitted  to  prove 
title  in  a  third  party,  unless  he  connects  himself  with  it. 
The  prior  possessor  is  ]iresumed  to  have  acquired  that  title 
as  af^ainst  the  mere  intruder  on  his  possession.  In  contro- 
versies upon  the  IState  lands  the  courts  have  not  heretofore 
permitted  the  title  of  the  State  to  be  proved,  by  one  not  de- 
raignin}!^  from  the  State,  for  the  purpose  of  destroying  the 
asserted  right  of  the  pricjr  possessor.  Even  where  a  court 
should  be  called  on  to  take  judicial  notice  of  the  State  title, 
and  that  no  law  had  been  passed  for  the  disposition  of  the 
State  lands,  it  would,  in  tl:e  interest  of  peace  and  good 
order,  presume  "  contrary  to  the  fact''- — as  was  said  by  Mr. 
Justice  Heydenfeldt — not  only  that  the  prior  possessor  had 
entered  and  occupied  with  the  consent  of  the  State,  but 
that  he  had  accpiired  the  State  title. 

Prior  to  the  adoption  of  the  Code  there  can  be  little  doubt 
that  in  coutroversieo  between  persons  upon  the  lauds  of  the 
State  as  i)i  like  controversies  upon  lands  of  the  United 
States  (where  neither  of  the  parties  had  derived  title  from 
the  Government),  the  doctrine  of  priority  of  appropriation 
of  water  alone,  or  of  water  as  a  part  of  land  appropriated, 
would  prevail.  These  considerations  create  a  very  strong 
])resumpti()n  that  the  riparian  rights  of  the  ^^itate  as  a  landed 
])roprietor,  existing  when  the  sections  of  the  Code  went  into 
operation,  were  not  intended  to  be  reserved  by  Section 
1.422. 

Inasmuch  as  the  sections  of  the  Code  relating  to  water 
rights  (so  far  as  they  relate  to  appropriations  of  water  on 
the  public  lands  of  the  State  or  of  the  United  States)  are  in 
furtherance  and  recognition  of  the  previous  doctrine  of  the 
courts  of  tin;  State  (according  to  which,  as  it  would  seem, 
the  prior  ap])ropriator  of  land,  and  the  water  thereon,  had 
the  better  right  as  against  the  subsequent  appropriator  of 
the  water  alone),  it  may  be  contended  that  Section  1,422 
recognizes  and  reaffirms  that  part  of  th  ;  rule,  and  protects 
the  ripariau  occupint  on  the  public  lands  of  the  State  from 
a  subsequent  appropriation  of  water  on  or  above  those 
lauds.  Either  so  (it  may  be  argued)  or  Section  1,422  has 
no  meaning  or  application  when  the  controversy  is  between 
mere  occupants  of  the  public  lands. 

But  however  this  might  be  where  both  parties  were  mere 
possessors  on  public  binds  of  the  United  States  the  title 
eight  of  the  Civil  Code,  so  far  as  it  relates  to  waters  flowing 


91 

to  the  lands  of  the  State,  is  more  than  an  acknowledgment 
of  the  doctrine  of  prior  appropriation  on  public  lands.  It 
is  plainly  a  concession  to  those  who  may  comply  with  its 
conditions,  which  operates  as  a  grant  of  the  servitude  a  hen 
the  conditions  are  fully  performed,  rel  iting  back  to  the  date 
of  the  commencement  to  erform.  It  is  a  concession,  how- 
ever, only  of  the  rights  to  the  water  which  the  State  shall 
not  already  have  parted  withal,  when  the  appropriation  shall 
be  made. 

XII, 

The  statute  of  April  IWi,  1850,  adop/s  the  common  law  of  Ea<j- 
land,  not  the  civil  law,  nor  the  "  ancient  common  laio  ''  of 
the  civilians,  nor  the  Mexican  law. 

Ill  ascertaining  the  common  law  of  England  loe  may  and 
should  examine  and,  tueigh  the  reasoning  of  the  decisions, 
not  only  of  the  English  courts,  but  also  of  the  courts  of  the 
Unifed  States  and  of  the  several  States,  down  to  tlie  present 
time.  We  are  not  limited  to  the  consideratim  of  fht  Eng- 
lish decisions  rendered  prior  to  July  4,  1776. 

The  possessory  rights  of  occupants  of  portions  of  the 
public  lands,  or  of  waters  thereon  {recognized  by  the  Cali- 
fornia courts)  are  protected  by  the  common  law. 

It  must  be  assumed,  as  the  case  is  now  presented,  that  the 
])laintiffs  obtained  from  the  State  title  to  riparian  lands, 
prior  to  an  appro,  riation  of  water  flowing  to  those  lands  by 
the  defendant;  because,  as  we  shall  see,  the  Court  below 
erred  in  refusing  to  admit  certain  evidence  bearing  on  that 
issue.  Inasmuch  then,  as  the  defendant  here  has  acquired 
no  right  to  the  Avater  by  it  ap[)ropriated — by  reason  of  a 
reservation  express  or  implied  in  the  grant  to  the  State  or  in 
the  conveyances  to  the  plaintiffs — which  it  can  assert  against 
the  plaintiffs;  and  as  there  is  no  "public  policy"  arising  out 
of  physical  conditions  existing  within  our  borders,  or  from  the 
implied  license  to  private  persons  to  enter  upon  and  occupy 
portions  of  the  public  lands,  or  the  waters  thereon,  while 
they  remain  such,  which  compels  or  authorizes  us  to  disre- 
gard the  gentn-.d  law,  or  which  should  control  or  modify  the 
meaning  which  should  otherwise  be  attributed  to  the  statutes 
of  the  United  States,  it  follows:  That  the  defendant  has  no 
right  to  divert  the  water  from  the  lands  of  the  plaintiffs, 
unless  that  right  exists  under  and  by  virtue   of  the  cmnnvm 


92 

law,  as  the  same  was  adopted  in  and  by  the  Act  of  April  13, 
1850. 

It  is  said  b}'  counsel  for  respondent  that  the  common  law 
adopted  hy  the  Act  of  1850,  is  tiie  common  law  as  fht  same 
lOds  adiniuistered  prior  to  July  4,  1776.  T'lmX'P  \.  Hatch 
(3  Abb.  Pr.  K.,  23)  is  referred  to  as  authority  for  this  state- 
ment. But  there  the  question  was,  what  was  presumed  to 
be  the  law  ^f  another  State,  in  the  absence  of  averment  and 
proof  with  respect  to  it.  It  was  hed  there  was  no  presuTj.p- 
tiou  that  the  sfafutes  of  another  State  were  the  same  as  those 
of  New  York.  It  is  held  in  California,  that,  in  the  ab  ence 
of  evidence  on  the  subject,  it  would  be  presumed  that  the 
statutes  of  another  State  are  the  same  as  ours.  {HU-kinan  v. 
Alpuu  //,  21  Cal.,  225;  Marsters  v.  Lash,  61  Id.,  624.) 

In  Throop  v.  Hatch,  the  learned  Judge  adds:  "It  is  well 
established  that  the  common  law  is  j^resumed  to  have  origi- 
nally existed  in  all  the  States  of  the  Union,  except,  perhaps, 
those  which  had  been,  before  becoming  members  of  the 
Union,  subject  to  another  Code  and  system  of  laws,  and  it 
is  a  well-establishe  I  presumption  of  law  that  things  once 
proven  to  have  existed  in  a  particular  condition,  continue 
in  that  condition  until  the  contrary  is  established  by  evi- 
dence either  direct  or  presumptive."  It  was,  therefore., 
ruled,  it  would  be  piesumed,  that  the  common  law  had  not 
been  changed  by  statute?  of  the  State  whose  law  was  in 
question. 

There  is  no  suggestion  (except,  perhaps,  in  the  mere 
statement  of  a  question  on  ):)age  -5j  that,  in  ascertaining  the 
common  law,  the  examination  should  be  confined  to  deci- 
sions of  the  English  or  Colonial  courts  rendered  prior  to  the 
Declaration  of  ludependence.  In  that  very  case  many  ad- 
judications made  after  that  event,  are  cited  ;  and  it  may  be 
added  that  it  is  the  uniform  practice  of  the  courts  in  this 
Country  to  rely  upon  the  reasoning  of  later  decisions  of  the 
courts  of  England  and  Ireland,  and  of  the  courts  of  other 
American  States,  when  the  question  is  as  to  the  rules 
of  the  common  law  applicable  to  the  facts  before  them. 

It  has  sometimes  tseen  said  that  the  English  statutes, 
down  to  a  period  corresponding  with  the  earliest  settlement 
of  the  colonics  in  North  America,  are  adopted  as  part  of 
common  law.  Of  course,  whore  a  statute  adopts  the 
English  statutes  prior  to  a  certain  date  or  reign,  and  thus  im- 
pliedly excludes  others,  the  courts  in  the  United  States  do 
not  regard  the  statutes  passed  since  the  date  or  reign. 

A  difierent  question  from  the  foregoing  is  the  question 
whether   in  adopting   the  "  common    law  of   England "  the 


93 

Legislature  adopted  a  law  derivable  froni  the  usages  and 
customs  of  miners  and  other  occupants  of  public  lands. 
It  is  alleged,  in  effect,  that  the  last  was  a  different  law,  with 
reference  to  waters,  from  the  common  law  as  enforced  in 
England  and  other  States  of  the  Union.  If  this  were  tiue 
it  certainly  was  not  adopted  by  the  statute.  The  substitu- 
tion of  what  is  now  called  "  appropriation  "  for  the  English 
rule  would  not  be  a  mere  modification  of  the  common  law; 
and,  strictly  speaking,  the  common  law  is  not  modiji'td  by 
an  application  of  its  principles  to  new  facts.  It  is  quite 
certain  that  the  alleged  modification  could  not  have  been 
brought  about  by  a  general  practice  which  could  be  upheld, 
upon  the  doctrine  of  license  or  grant,  in  accordance  with 
the  common  law. 

In  entertaining  "against  the  fact"  the  presumption  that 
the  occupants  of  land  or  water,  on  the  public  domain,  had 
received  grants  from  the  paramount  sources  of  title,  the 
courts  of  California  did  not  repeal  or  modify  the  common 
law  ;  but  immediately  after  its  adoption  they  began  to  fol- 
low the  common  law  in  thai  regard.  The  English  courts  had 
frequently  held  that  a  grant  from  the  Crown  would  be  pre- 
sumed from  lapse  of  time.  The  courts  here  had  held  that 
lapse  of  time  was  only  a  reason  for  presumption,  an  J  that 
upon  common-law  principles,  it  might  be  sustained  on 
other  facts.  Upon  this  common-law  presumption  is  based 
the  whole  fabric  of  the  law  which  determines  conflicting 
possessory  rights  on  the  public  domain.  The  presumption 
has  no  place  where  either  party  has  received  a  grant  from 
the  Government ;  for  a  presumptive  grant  (except  perhaps 
when  based  on  lapse  of  time)  can  never  be  asserted  against 
an  actual  grant. 

By  the  Act  of  1850  the  common-law  presumption  was 
adopted  as  part  of  the  common  law;  as  was  also  the  applica- 
tion of  the  presumption,  as  subsequently  held  by  the  courts, 
since  its  subsequent  reasonable  application  was  implicitly 
comprised  in  the  presumption  itself.  Thus  the  principles 
of  the  common  law  fully  protected  the  just  possessory  rights 
of  occupants  on  the  public  lands.  In  adopting  the  common 
law,  therefore,  the  Legislature  adopted  the  common  law, 
and  not  some  other  and  different  law. 

"The  customs,  usages  and  regulations  of  the  bar  or  dig- 
gings" were  afterward,  by  express  statute,  declared  to  be 
admissible  as  evidence,  in  "  actions  respecting  mining 
claims."  (Pr.  Act,  1861,  Sec.  621).  It  has  always  been 
held  that  local  regulations,  etc.,  accepted  by  the  miners  of 
a  particular    district,    are  binding  only   as   to    possessory 


94 

rights  within  the  district,'  and  that  they  must  be  proved  as 
a  fact.  When  thev  have  been  proved,  the  courts  have  con- 
sidered them  only  for  the  purpose  of  ascertaining  the  extent 
and  boundaries  of  the  alleged  possessions  of  the  respective 
parties  to  a  litigation,  and  the  priority  of  possessory  right 
as  between  them;  or,  for  the  purpose  of  ascertaining  whether 
the  right  of  action  has  been  lost  or  abandoned  by  failure  to 
work  and  occupy  in  the  manner  prescribed.  When  the 
priority,  limits  and  continuation  of  a  possession  have  thus 
been  ascertained  the  courts  have  proceeded  to  apply  the 
presumption  of  grant  from  the  paramount  source;  a  pre- 
sumption, we  repeat,  sustainable  on  common  law  principles. 
It  is  also  true  (where  no  special  "  m  niug  laws"  have  been 
jDroved)  that,  in  ascertaining  the  limits  of  a  mining  posses- 
sion, the  courts  have  said  the  same  common-law  principles 
are  to  be  relied  upon  as  those  which  regulate  rights  to  the 
possession  of  agricultural  lands,  although  the  indicia  of  pos- 
session are  not  necessarily  the  same.  (Emjlish  v.  Joh)isov, 
17  Cal.,  107).  The  possession,  in  such  case,  maybe  proved 
by  satisfactory  evidence  of  notorious  acts  of  occupation, 
reference  being  had  to  the  nature  of  the  lands,  the  uses  to 
which  they  can  be  put,  and  to  the  general  practices  or 
customs  of  the  region  with  respect  to  the  occupation  of 
lands  of  the  particular  character.  But  the  possession,  how- 
ever proved,  being  established,  the  presumption  of  grant 
arises. 

The  Act  of  1850  adopts  the  common  law  of  England  ;  not 
the  civil  law,  nor  the  jus  crramuiv  antiquum — or  Roman 
"law  of  nature"  of  some  of  the  civil-law  commentators 
{Braly  v.  Reese,  51  Cal.,  5(5'!,  note);  nor  the  Mexican  law  ; 
nor  any  hybrid  system.  And  the  ex})ression  "common  law 
of  England,"  designates  the  English  common  law  as  inter- 
lireted,  as  well  in  the  English  courts,  as  in  the  courts  of 
surh  of  the  States  of  the  Union  as  have  adopted  the  English 
common  law.  We  cannot  presume  that  the  members  of  the 
Legislature,  even  at  that  day,  were  utterly  ignorant  of  the 
climate  and  soil  of  the  country  in  which  they  lived  ;  and 
there  were  included  in  their  number  many  natives  of  Cali- 
fornia who  must  1)0  presum^'d  to  have  represented  tlio  in- 
telligence of  a  race,  which,  for  several  generations,  had 
been  familiar  with  natural  conditions  here  existing. 
The  report  of  the  proceedings  of  the  Legislature  shows 
that  there  was  a  coasider.ible  minority  in  favor  of  the 
adoption  of  the  civil-law;  and  there  are  circumstances  ap- 
peiring  from  the  proceedings  tending  to  prove  that  the 
advantages  o    each  system,  as  the    fundament  d   law  of  the 


95 

futuie,  were  discussed  aud  fully  considered.  Under  these 
circumstances  we  must  believe  that  if  it  had  been  intended 
to  exclude  the  common  law  ms  to  the  riparian  right,  the  in- 
tention would  have  been  expressed.  Moreover,  it  is  a  well- 
established  principle  that,  when  the  Legislature  of  this 
State  has  enacted  a  statute  like  one  previously  existing  in 
other  States  the  courts  here  may  look  to  the  interpretation 
of  such  statute  by  the  courts  of  the  other  States.  (Ptople 
v.  Wehh,  08  Cal.,  477;  People  v.  Coleman,  4  Id.,  50;  Taylur 
V.  Palmer,  31    Id.,  254.) 

Whatever  the  law  pre-existing  the  statute  of  1850,.  it  was 
then  and  there  done  away  with,  except  as  it  agreed  with  the 
common  law.  The  matter  was  settled  if  the  law- makers 
had  power  to  settle  it. 

And  it  w^as  not  the  common  law  "as  the  same  was  ad- 
ministered "  at  a  certain  date  that  was  adopted,  but  the 
common  law.  Indeed,  the  administration  of  the  law  in  par- 
ticular cases  may  be  a  very  different  thing  from  the  l.iw 
itself.  [Note:  We  give  counsel  for  respondent  the  benefit 
of  the  last  suggestion,  to  be  applied,  if  applicable,  to  the 
present  decision.]  The  statute  adopts  the  common  law  of 
England,  except  w^here  inconsistent  with  the  Constitutions 
and  statutes,  and  there  can  be  no  good  reason  why,  to  ascer- 
tain the  common  law  of  England,  we  should  not  refer  to  the 
decisions  of  English  and  American  courts  (in  States  where 
the  common  law^  prevails)  rendered  before  and  subsequent 
to  the  date  of  the  statute. 

Looking  at  the  whole  array  of  adjudications,  if  we  find  a 
question  has  often  been  decided  in  one  way — :the  cases  pre- 
ceding the  line  of  corroborative  and  conformable  decisions 
being  adverted  to  in  them,  analyzed  and  held  not  necessarily 
conflictive — the  rule  of  the  common  law,  involved  or  pre- 
sented in  the  question,  ought  to  be  considered  as  beKle  '. 

There  is  no  pretense  that  the  courts  ever  were  infallible; 
it  is  sometimes  held  that  a  ])revious  decision  does  not  de- 
clare the  law.  Where  the  rule  has  become  settled,  it  is  not, 
as  opposed  to  au}'  former  decision,  a  new  rule,  but  must  be 
held  to  have  been  the  law  from  the  beginning,  because 
"  right  reason  "  has  always  been  the  prime  element  of  the 
law.  And  in  such  case,  if  anything  has  been  said,  in  an 
earlier  decision — which  cannot  be  resolved  into  mere  (iic/nni 
or  as  applicable  to  the  peculiar  facts — that  apparently  con- 
flicts wdth  the  settled  rule,  it  is  considered  to  be  an  errone- 
ous exposition  of  the  law.  Courts  do  not  repeal  former  de- 
cisions; when  they  reverse  them  they  hold  they  were  never 
law. 


06 

The  common  l;iw  of  Eugluiid  maj  be  said  to  consist  of  a 
collection  of  principles  found  in  the  opinions  of  sages,  or 
deduced  from  universal  and  immemorial  usage,  and  receiving 
progressively  the  sanction  of  the  courts.  It  was  imported  b}' 
our  colonial  ancestors,  so  far  as  it  was  applicable,  and  was 
sanctioned  by  ro^-nl  charters.  (1  Kent.  Comm.,  473.)  The 
best  evidence  of  the  common  law  is  found  in  the  decisions 
of  the  courts,  contained  in  numerous  volumes  of  reports 
and  in  the  treitises  and  digests  of  learned  men,  "which 
have  been  multijilving  from  the  earliest  periods  of  English 
history  dow)i  to  the  prcsi^rif,  time."     (Ibd.) 

There  is  no  implied  exception  in  the  words  "so  far  as 
applicable"  which  would  exclude  the  common  law  from  the 
colonial  law,  except,  perhaps,  when  the  question  was  ah  ovo, 
and  no  principle  of  the  commoi  law  could  have  appropriate 
bearing  upon  it.  Since  the  Revolution  the  common  law  of 
England  has,  of  course,  been  inapplicable  in  the  particulars 
that  it  does  not  harmonize  with  the  political  conditions  on 
this  Continent.  Where  it  is  in  conflict  with  our  Constitution 
of  Government  it  is  not  part  of  our  law,  because  the  organic 
law  is  the  supreme  law.  This  would  be  the  case  if  the 
statute  were  silent;  and,  as  Ave  have  seen,  the  statute  of  1850 
does  not  adopt  the  common  law  so  far  as  "it  is  repugnant  to 
or  inconsislent  with  the  Constitution  of  the  United  States, 
or  the  Constitution  and  laws  (statutes)  of  the  State  of  Cali- 
fornia." 

We  know  of  no  decisions  which  intimate  that  a  difference 
in  climatic  or  geographical  conditions  ma}-  operate  to  trans- 
fer a  right  of  property  from  those  in  whom  a  right  of  prop- 
erty is  vested  by  the  common  law.  To  so  hold  would  bean 
attempt  to  do  that  which,  as  contended  by  counsel,  could 
not  be  done  with  reference  to  the  common  use  to  which  (as 
claimed)  property  was  dedicated  by  the  Mexican  law.  Such 
conditions  may,  perhaps,  afifect  the  mode  of  enjoyment  of  the 
common  right  of  all  the  riparian  proprietors  on  the  same 
stream.  Nor  do  we  know  of  cases  where  the  courts  in  the 
United  States  have  und<  rtaken  to  change  the  common  law. 
We  think  it  is  abundantly  proved  by  3Ir.  Hiick  that  there 
has  been  no  substantial  change  iu  the  United  States  in  the 
law  with  respect  to  navijable  rivers  (although  the  contrary 
has  been  asserted),  but  that  the  true  test  of  iiaviyahility  was 
always  the  fact  of  a  river  being  in  fact  navigated  or  capable 
of  being  navigated;  that  all  streams  above  tide  are  not  in 
England  innavigable.     (On  Navigable  Eivers,  passim.) 

In  an  English  case  cited  in  Woolrych  on  Waters,  p.  41, 
Mr.  Justice  Bayley  observed  "The  strength  of  (he  prima  fade 


97 

evidence  arising  from  tbe  flux  and  reflux  of  the  tide  must 
depend  upon  the  situation  and  nature  of  the  channel,"  and 
held  of  a  petty  stream,  although  the  daily  tides  went  up  it, 
that  it  was  not  a  navigable  river.  And  Woolrych  says  of  the 
English  law,  "Public  user  for  the  purposes  of  commerce  is 
consequently  the  most  convincing  evidence  of  the  existence 
of  a  navigable  river,     (p.  42.) 

XIII. 

The  doctrint  of  "appropriation,''  so  culled,  is  not  (he  doctrine  of 
the  common  law. 

Counsel  for  respondent  assert  that  the  property  in  the  use 
of  waters  is,  by  the  common  law,  acquired  only  by  appro- 
priation. In  support  of  this  proposition  are  cited  Bealy  v. 
Shaw,  6  East.,  370;  Saunders  \.  Newman,  1  Barn,  and  Aid., 
261;  2  Blaclxstone's  Com.,  14,403;  Coxy.  Matthews,  1  Ventris, 
237;  Lifujins  v.  Inge,  7  Bing.,  692;  10  John.,  241;  3  John. 
Ch.,  187;  Goddard's  Law  of  Easements,  250  et  pas. 

Mason  v.  Hill,  supra,  was  decided  in  the  King's  Bench  in 
1833.  The  Court  there  said:  "The  position  that  the  first 
occupant  of  water  for  a  beneficial  purpose,  has  a  good  title 
to  it,  is  perfectly  true  in  this  sense,  that  neither  the  owner 
of  the  land  hcloiv  can  back  the  water,  nor  the  owner  of  the 
laud  above  divert  it  to  its  prejudice.  In  this,  as  in  other 
cases  of  real  propertj',  possession  is  a  good  title  against  a 
wrong  doer.'  He  adds  that  tlit;  owner  of  a  mill,  if  the 
stream  is  obstructed  or  diverted,  ma}-  recover  consequentid 
damages  to  his  mill  (Rutland  y.  Bowler,  Palm,  290),  and  to 
the  same  effect  are  some  American  cases.  "But,"  says  Lord 
Denman,  in  Mason  y.  Hill,  "  it  is  a  very  different  question 
whether  he  can  take  from  the  land  below  one  of  its  natural 
advantages  which  is  capable  of  being  applied  to  valuable 
purposes,  and  generally  increases  the  fertility  of  the  soil 
even  when  unapplied;  and  deprive  him  of  it  altogether  by  an- 
ticipating   him    in    its    application   to    a    useful    purpose." 

^  *  •«■  < « Y^Q  think  that  this  proposition  has  originated 
in  a  mistaJi'en  view  of  the  principles  laid  down  in  the  decided 
cases  of  Bealif  v,  Shaw,  Saunders  v.  Neiuman,  Williams  v. 
Morela)uI(2  B.  &  C,  915).  It  appears  to  us,  also,  that  the  doc- 
trine oi  Blackstoiie  and  the  dicta  of  learned  judges  in  some 
of  those  cases,  and  in  that  of  Cox  v.  Matthews,  have  been 
misconceived." 

The  Court  then  proceeds  to  show  that  neither  Bealy  v. 
Shaw  nor  Saunders  Y.   Neiuman,  nov    Williams  v.    3foreland, 


98 

nor  the  diclniii  of  Lord  Chief  Justice  Tindal  iu  Ligyuiys  v. 
Inge,  nor  that  of  Lord  Hale  in  Cox  v.  Matthews  (when  prop- 
erly uuderstood),  nor  the  observations  of  Blacksfone,  ought 
to  be  cousidered  as  authority  that  the  first  occupant,  or  first 
person  (although  a  riparian  owner),  who  chooses  to  appro- 
priate a  natural  stream,  has  a  title  against  the  owner  of  the 
laud  below,  and  may  deprive  him  of  the  natural  right  to  the 
water.  And  Lord  Denman  adds  that  the  view  taken  in 
Mason  V.  Hill,  as  to  the  riparian  right,  accords  with  the  law 
as  laid  dow-n  by  Serjeant  Adair,  Chief  Justice  of  Chester, 
in  Prescott  v.  Phillips  (1  Vent.,  237),  by  Lord  EUenborough 
in  Bealt/  v.  Shaw,  and  by  the  Master  of  the  Eolls  in  Hoic- 
urd  v.    if  right  (1  Show.,  64.) 

It  has  been  suggested  that  what  is  said  on  the  subject  in 
Mason  v.  Hill  was  mere  dictum,  since,  it  is  claimed,  that 
rase  might  have  been  decided  on  the  theory  of  "  appropria- 
tion." The  case  shows  that  the  question  was  fairly  pre- 
sented, and  was  fully,  and,  in  one  point  of  view,  necessarily 
considered. 

Sackrider  v.  Beers  (10  Johnson,  241),  was  an  action  at  law. 
The  defendant  had  taken  water  out  of  the  stream  and  con- 
ducted it  by  means  of  a  race-way  to  a  point  in  the  stream, 
below  the  phiiutifi's  dam.     Plaintiff  recovered. 

In  Va)i  Bergen  y.  Van  Bergen  (3  John.  Ch.,  282),  the  plain- 
tifi' had  fully  released  to  the  defendant.  The  Court  said  the 
remedy  of  tlie  plaintiff"  (if  any)  ought  to  be  sought  at  law, 
by  an  action  on  the  lase,  or  upon  the  convenants  contained 
iu  his  deed  of  release. 

Goddard  in  his  Law  of  Easements  (p.  251)  declares  '"That 
all  riparian  ownei'S  of  natural  streams  have  a  riparian  right 
to  the  use  of  water  as  it  flows  past  their  lands  as  long  as 
they  do  not  interfere  witli  the  natural  rights  of  other  ripar- 
ian owners,  and  to  sue  for  disturbance  is  now^  an  established 
doctrine  of  the  law."  He  adds:  "The  doctrine  was  not  estab- 
lished nntll  comparatively  modern  times,"  etc.  He  says,  af- 
ter referring  to  some  of  the  earlier  decisions,  that  the  (appar- 
ent) theory  of  appropriation  was  much  modified  by  various 
decisions  "as  the  nature  of  riparian  rights  icas  brotig/it  more 
fulhj  under  cuhsideration;^'  citing  in  this  connection  Mason  v. 
Jlill  iind  Cueker  v.  Cowpcr  {5  Tryw.,  103).  He  concludes: 
"Appropriation  of  the  water  of  flowing  streams  has  thus 
gradually  fallen  from  being  considered  the  means  of  acquir- 
ing important  rights,  to  being  deemed  of  no  importance  lohai- 
ever." 

Mr.  Angell,  however,  cites  a  case  of  as  early  a  date  as  32 
Edward  III,  where  an  assize  of  nuisance  was  brought  by  A 


99 

against  B,  for  that  B  had  made  a  trench  from  a  river,  and 
drawn  away  thereby  a  part  of  the  water  and  stream  another 
way  from  that  in  which  it  did  formerly  use  to  run ;  and  the  as- 
size passed  for  the  plaintiff;  and  it  was  adjudged  that  the  water 
should  be  removed  to  its  ancient  channel  at  the  cost  of  tiie 
defendant.  (On  Water  courses,  93),  See  also  Year  Book, 
1-4  Henry  VIII,  81,   referred  to  by  Angell. 

In  Chascmon  v.  Richards  (7  H.  L.  Cases,  384),  Lord  Win- 
sleydale  declares:  "  We  may  consider,  therefore,  that  this 
proposition  is  indkpidahle,  that  the  right  of  the  proprietor  to 
the  enjoyment  of  a  water  course  is  a  natural  right  and  is  not 
acquired  by  occnpatlon,'"  etc. 

In  examining  the  numerous  cases  which  establish  that  the 
doctrine  of  "appropriation  "  is  iwt  the  doctrine  of  the  com- 
mon law,  we  meet  an  embarrassment  of  abundance.  The 
authorities  referred  to  under  the  next  head,  and  many  others, 
clearly  hold  to  the  contrary  of  the  proposition  contended  for 
by  counsel  for  respondent. 

XIV. 

Riparian  Rights.  By  the  common  law  the  right  of  the  riparian 
propriei/jr  to  the  flow  of  the  stream  is  inseparably  annexed 
to  the  soil,  and  passes  with  it,  not  as  an  easement  or  appur- 
tenance, but  as  part  and  parcel  of  it.  Us?  does  not  create 
the  right,  and  disuse  cannot  destroy  or  suspend  it.  The 
right  in  each  extends  to  the  natural  and  usual  flow  of  all 
the  ivaier,  unless  lohere  the  quantity  has  been  diminished  as 
a  consequence  of  the  reasonable  application  of  it  by  other 
riparian  owners,  for  purposes  liereafter  to  be  mentioned. 

In  the  case  now  here  there  is  no  question  as  to  the  use  of 
water  for  propelling  machinery.  And,  in  treating  of  the 
riparian  right  at  common  law,  we  shall  reserve  (for  the  pres- 
ent) the  consideration  of  the  effect  of  the  diminution  of  the 
flow  of  a  stream,  by  reason  of  its  consumption  by  a  riparian 
proprietor,  to  satisfy  what  has  been  called  "  natural  wants  " 
— its  reasonable  consumption  by  cattle,  or  for  domestic 
uses— and  also  the  effect  of  absorption  and  evaporation  by 
reason  of  its  application  to  the  purposes  of  irrigation. 

As  to  the  nature  of  the  right  of  the  riparian  owner  in  the 
water,  by  all  the  modern,  as  well  as  ancient  authorities,  the 
right  in  the  water  is  vjiufructuxxry,  and  consists  not  so  much 
in  the  fluid  itself  as  in  its  uses;  including  the  benefits  de- 
rived from  its  momentum  or  impetus.  (Angell  on  "Water- 
courses, Sec.  94,  and  notes.) 


100 

But  the  right  to  a  water-course  begius  ex  jure  naturce,  and, 
having  taken  a  certain  course  naturally,  it  cannot  be  diverted 
to  the  deprivation  of  the  rights  of  the  riparian  owners  below. 
So  sa}-  all  the  common  law  text-books,  and  the  decisions. 
(Angell,  Sec.  93.)  Aqua  currit  et  debet  currere  id  currere  sole- 
bat  "  is  the  language  of  the  ancient  common  law."  {Ibd.; 
Shnry\.  Fiqott,  Bulst.,  399;  Countess  of  Rutland  x.  Bowlet; 
Palm.,  390.) 

"  As  a  general  2^t^oposition,  ever}'  riparian  proprietor  has  a 
natural  and  equal  right  to  the  use  of  the  water  in  the  stream 
adjacent  to  his  land,  without  diminution  or  cdteratioii"  (Wash- 
burn, Ease,  and  Serv.,  319.) 

"  Eiparian  proprietors  are  entitled,  in  the  absence  of  grant, 
license  or  prescription,  limiting  their  rights,  to  have  the 
stream  which  washes  their  lands  flow  as  is  wont  by  nature, 
without  material  diminution  or  alteration."  (Gould,  on 
Waters,  Section  204.) 

Each  riparian  proprietor  has  a  right  to  the  natural  flow  of 
the  water-Course  undiminished,  except  by  its  reasonable  con- 
sumption b}'  upper  proprietors.  (Angell,  chap.  lY,  ])asssim.) 

The  right  to  the  flow  of  the  water  is  inseparably  annexed 
to  the  soil  and  passes  with  it,  not  as  an  easement  or  appur- 
tenant, but  as  a  parcel.  Use  does  not  create,  and  disuse  can- 
not destroy  or  suspend  it.  Each  person  thnuigh  whose  land 
a  water-course  flows  has  (in  common  with  those  in  like  situa- 
tion) an  equal  right  to  the  benefit  of  it  as  it  passes  through 
his  land,  for  all  useful  purposes  to  which  it  may  be  applied; 
and  no  proprietor  of  land  on  the  same  water-course  has  a 
right  unreasonably  to  divert  it  from  flowing  into  his  premises, 
or  to  obstruct  it  in  passing  from  them,  or  to  corrupt  or 
destroy  it.  (Chief  Justice  Shaw,  in  Johnson  v.  Jordan,  2 
Mete,  239.) 

The  right  to  the  use  of  water  flowing  over  land  is  un- 
doubtedly identified  wifh  the  realty,  and  is  a  real  and  corporeal 
hereditament.     {Oary  v.  Daniels,  5  Mete,  238.) 

Prima  facie,  every  proprietor  on  each  bank  of  a  river  is 
entitled  to  the  land  covered  by  the  water  to  the  middle  thread 
of  the  river;  and  has  a  right  to  the  use  of  the  water  flowing 
over  it  in  its  natural  current,  without  diminution  or  obstruc- 
tion. Priority  of  occupancy  of  the  flowing  waters  of  a  river 
creates  no  right,  unless  the  appropriation  be  for  a  period  which 
the  law  deems  a  presumption  of  right.  (Mr.  Justice  Story: 
Tyler  v.   Wilkinson,  4  Mason,  396.) 

Whatever  may  be  said  of  Sam2)son  v.  Hoddinot  (1.  C.  B. 
N.  S.,  590)  as  bearing  on  the  right,  to  irrigate,  it  recognizes 
the  riparian  right.     Creswell,  J.  says:    "  It  appears   tons 


101 

that  all  persons  having  land  upon  a  flowing  stream  have,  by 
nature,  certain  rights  to  the  use  of  the  stream,  ivhether  they 
exercise  them  or  not,  and  they  may  begin  to  exercise  them 
whenever  they  will." 

It  has  always  been  held  that  a  grant  of  land  carries  with 
it  the  water  flowing  over  the  soil.  The  well-known  maxim, 
cajiLS  est  solum  ejus  est  usque  ad  coelum,  inculcates  that  land, 
in  its  legal  signification,  has  an  indefinite  extent  upward. 

We  need  not  add  that  rights  to  the  use  of  water  may  be 
acquired  by  grant,  under  some  circumstances  by  assent,  and 
by  adverse  user  and  possession. 

It  is  unnecessary  to  pursue  the  subject  further,  or  to  refer 
to  the  many  text-books  and  decisions  in  the  courts  in  Eng- 
land and  in  other  States,  which  fully  support  the  proposition 
laid  down  in  the  foregoing  title.     (No.  XIV.) 

The  Supreme  Court  of  California  has  not  been  silent  with 
respect  to  the  subject. 

"The  right  to  running  water  is  defined  to  be  a  corpo- 
poreal  right  or  hereditament,  which  follows  or  is  embraced 
by  the  ownership  of  the  soil  over  which  it  naturally  passes. 
Sackeftv.  Wheaton,  17  Pick.,  105;  1  Cruise  Digest,  39;  An- 
gell,  p.  3."  {Hill  V.  Newman,  5  Cal.,  445.)  By  settled  prin- 
ciples of  both  the  civil  and  common  law  the  riparian  owner 
has  a  usufruct  in  the  stream  as  it  passes  over  his  land,  of 
which  he  cannot  be  deprived  by  mere  diversion.  {Pope  v. 
Kinman,  54  Cal.,  3.)  The  right  of  a  riparian  proprietor  to 
have  the  water  of  a  stream  run  through  his  land  is  a  vested 
right,  and  an  interference  with  it  imports  damages.  {Creigh- 
ton  V.  Evam,  53  Cal.,  55.)  The  riparian  right  is  fully  recog- 
nized in  Ferrea  v.  Knipe  (28  Cal.,  340),  where  it  was  held 
that,  although~an  upper  riparian  proprietor  had  a  right  to  the 
use  of  a  stream  for  watering  his  cattle  and  for  domestic  pur- 
poses, he  had  not  a  right  to  dam  up  the  creek  and  spread 
out  the  water  over  a  large  surface,  by  which  it  became  lost 
by  absorption  and  evaporation  to  an  extent  which  prevented 
the  stream  from  flowing  to  the  premises  of  the  lower  propri- 
etor; such  obstruction  not  being  a  proper  or  reasonable  use 
of  the  water.  As  decided,  the  judgment  in  Hale  v.  McLea, 
(53  Cal.,  578,)  necessarily  involved  a  determination  of  the 
question.  It  was  there  assumed  that  a  defendant  through 
whose  land  ran  a  subterranean  stream  which  continued  to 
the  hand  of  the  plaintiff,  had  no  greater  right  to  divert  the 
water  than  if  the  stream  had  been  on  the  surface.  This  was 
an  assumption  against  the  defendant,  adversely  to  whom  the 
case  was  decided.  Mr.  Justice  Crockett  says:  "Tested  by 
the  rule"  (as  to  surface  streams)   "the  utmost  that  can  be 


102 

claimed  for  the  defentlaDt  on  the  facts  is,  that  he  is  entitled 
to  take  from  the  stream  as  much  water  as  he  needs  for  water- 
ing his  cattle  and  domestic  uses,  such  as  cooking,  washing 
and  the  like,  leaving  the  surplus  to  flow  to  the  spring  of 
l^laintiti'  in  its  natural  channel."  "  If  it  were  a  surface  stream 
the  ilaintili'  would  be  entitled  to  have  it  flow  to  and  across 
his  lands,  in  its  natural  channel,  subject  onl}'  to  the  right  of 
the  defendant  to  use  so  much  of  the  water  as  is  necessary  to 
supply  his  natural  or  primary  wants  as  above  indicated." 
"  But  the  findings  show  that  the  defendant  has  diverted  the 
whole  body  of  the  stream  through  pipes^,  in  such  a  manner 
that  no  portion  of  the  Avater  can  reach  the  spring;  and  the 
surplus  at  the  beginning  of  this  action  was  ruioiinfj  to  waste.'' 
"  There  is  no  question  in  this  case  involving  the  right  of  a 
riparian  owner  to  the  use  of  water  for  the  purposes  of  irri- 
gation." 

Hanson  v  McCne  (42  Cal.,  303)  was  decided  on  the  ground 
that,  upon  the  facts  of  the  case,  no  defined  subterranean 
channel,  with  water  flowing  therein,  existed.  But  both 
Chief  Justice  Wallace  and  Mr.  Justice  Crockett,  who  deliv- 
ered opinions,  seem  to  assume  that  the  rules  of  law  which 
apply  to  surface,  apply  to  underground  currents,  flowing  in 
a  definite  channel;  and  that  as  to  surface  streams  the  right 
of  a  riparian  proprietor  is  to  have  the  water  flow  uhi  solehat. 


XV. 

By  our  law  the  riparian  proprietors  are  entitled  to  a  reasonable 
lose  of  theivaters  of  the  stream  for  the  lourpose  of  irrigation. 
What  is  such  reasonable  use  is  a  question  of  fact,  and  de- 
pends  upon  the  circumstances  appearing  in  each  particular 
case. 

To  decide  this  appeal  it  is  not  imperatively  necessary  to 
lay  down  a  rule  which  shall  govern  the  matter  of  irrigation 
by  riparian  owners.  By  the  common  law  none  but  riparian 
owners  can  employ  or  suffer  the  employment  of  the  water 
for  any  purpose.  The  defendant  here  relies  entirely  on  its 
right  to  appropriate  under  the  provisions  of  the  Civil  Code— 
a  right  limited  only  by  the  capacity  of  its  canal — the  quan- 
tity actually  appropriated  and  appropriately  applied.  It  is 
not  averred  that  the  defendant  is  a  riparian  proprietor. 
Neither  the  statutes  of  the  General  Government  nor  those  of 
the  State  coutempl.vte  (if  it  were  possible  in  fact)  appropria- 
tions  for    the    bonefit   of    the    United    States.     They    must 


103 

always  be  for  the  benefit  of  the  persons  seized  of  lauds,  or 
aptually  possessed  of  tracts  of  the  public  domaiu.  The  de- 
fendant's appropriation  was  "for  the  purpose  of  irrigating 
and  supplying  with  water  the  kinds  in  the  notice  of  appro- 
priation designated  and  lying  along  the  route  of  said  canal."' 
(Finding.)  The  notices  of  appropriation  do  not  describe  the 
tract  of  land  it  was  the  intention  to  irrigate,  nor  are  the 
limits  of  the  tracts  irrigated  described  in  the  findings. 
There  is  no  suggestion  that  such  tracts,  if  any  there  are, 
belong  to  or  are  possessed  by  the  same  person  or  persons, 
nor  any  (an  importailt  consideration)  that  the  surplus  waters 
were  returned  to  the  channel.  It  is  only  the  tracts  next  the 
stream  which  are  riparian  lands,  and  the  owners  of  such 
tracts  are  alone  riparian  owners.  Even  if  the  defendant 
were  treated  as  haying  received  a  license  from  the  owner  of 
the  tract  in  which  its  canal  heads,  or  as  being  itself  the 
owner  of  that  tract,  there  is  no  pretense  that  the  water 
actually  diverted  was  used  to  irrigate  that  particular  tract, 
or  that  the  quantity  consumed  was  necessary  or  reasonable 
for  that  purpose. 

Nevertheless,  as  upon  a  new  trial  of  this  action,  the  ques- 
tion may  possibly  be  presented,  we  propose  to  make  a  few 
observations  upon  the  doctrine  of  the  common  law  with 
regard  to  irrigation  by  riparian  owners. 

Mr.  Angell  submits,  whether  it  may  not  fairly  be  deduced 
from  the  authorities  that  for  an  essential  diminution  of  the 
water  of  a  water-course,  which  nature  has  directed  to  run  in 
a  certain  and  determinate  channel  for  any  purpose,  the  law 
in  this  country  will  not  interpose? 

So  far  as  tiie  question  may  be  supposed  to  imply  that  an 
upper  appropriator  may  not  "essentially"  diminish  the  water 
by  using  it  for  domestic  purposes  and  for  watering  cattle, 
the  weight  of  authority  is  that  he  may,  if  nectssary,  consume 
all  the  water  of  the  stream  for  those  purposes.  {Gould  on 
Waters,  Section  203.)  Such  is  the  California  rule.  {Farrea 
V.  Knipe  and  Lane  v.  McLea,  supra.)  Indeed,  in  case  of  a 
small  rivulet  the  necessary  consequence  of  using  it  at  all,  by 
one  or  more  upper  owners,  for  these  "natural"  or  "pri- 
mary" purposes,  must  often  be  to  exhaust  the  water. 

Chancellor  Kent  (Commentaries,  Vol.  3,  p.  429),  is  some- 
times quoted  as  proving  that  water  cannot  be  emplnyed  for 
irrigation;  sometimes  as  proving  that  it  may  be.  He  says: 
"Streams  of  water  are  intended  for  the  use  and  comfort  ot 
man;  and  it  w^ould  be  unreasonable  and  contrary  to  the 
general  sense  of  mankind  to  debar  any  riparian  proprietor 
from  the  application  of  water  for  domestic,  agricultural,  or 


104 

manufacturing  purposes;  prDvided,  the  use  of  water  be  made 
uuder  the  limitation  that  he  do  no  material  injunj  to  his 
neighbor  below  him,  who  has  an  equal  right  to  the  sub- 
sequent use  of  the  same  water." 

It  seems  to  us  that  the  foregoing  (although  a  very  distinct 
statement  of  the  general  proposition)  ought  not  to  be  taken 
literally,  unless  the  words  material  hijiu'ij  be  impressed  with 
a  signification,  the  equivalent  of  a  substantial  deprivation  of 
capacity  in  a  lower  proprietor  to  employ  the  water  for  useful 
purposes.  The  adjective  is  prefixed  to  "  injury,"  and  the 
words  seem  to  have  reference  to  the  enjoyment  of  the  use 
by  the  inferior  owner — not  to  his  mere  abstract  right  to  the 
use  as  against  others  than  riparian  owners;  and  to  intimate 
that  he  cannot  complain  of  a  reasonable  exercise  of  the  use 
by  another  who. possesses  the  general  right  in  common  with 
himself. 

The  passage,  as  a  wdiole,  may  be  fairly  said  to  conve}'  the 
idea  that  water  may  be  used  for  ;igricullural  or  manufactur- 
ing purposes  when  such  use  does  not  materially  deprive  the 
lower  proprietors  of  water,  either  for  drinking  or  for  agri- 
culture, etc.  Undoubtedly,  as  against  an  appropriation  by 
a  mere  w-rong-doer,  a  riparian  proprietor  may  insist  upon  the 
entire  and  complete  natural  flow  of  the  stream.  The  em- 
ployment by  Kent  of  the  words  "material  injury"  implies 
that  every  diminution  is  not  any  injury,  and  it  excludes, 
where  water  is  reasonably  used  above  for  irrigation,  mere 
sentiment,  or  the  consideration  of  a  diminution  from  the 
natural  flow  so  far  merely  as  such  flow  pleases  the  eye  or 
gratifies  a  taste  for  the  beautiful.  Of  course,  in  ascertain- 
ing Avhether  irrigation  is  reasonable,  its  effect  in  depriving 
the  lower  proprietor  of  natural  irrigation  is  to  be  considered 
with  the  other  circumstances.  Moreover,  as  we  have  seen, 
it  is  established  that,  so  far  as  the  use  for  domestic  purposes, 
all  the  water  of  a  stream  ma)^  if  necessary,  be  exhausted.  In 
that  case  the  lower  proprietor  receives  none  of  it,  and  Chan- 
cellor Kent  cannot  have  intended  that  material  diminution 
always  means  material  tiijuri/.  A  priori  it  would  be  ex- 
pected that  the  decisions  in  Great  Britain  and  Ireland 
would  not  much  assist  the  inquiry,  since,  owing  to  the 
humidity  of  the  climate  of  those  islands  it  must  rarely  hap- 
pen that  any  use  of  irrigation  can  be  reaso)iabIe.  And  for 
any  purpose  the  use  must  be  reasonable,  the  maxim  which 
every  riparian  proprietor  is  bound  to  respect  being  sic  utere 
fao,  lit  alieiiuni  nan  laedas.  The  question  whether  the  use 
is  reasonable,  is  not  so  much  whether  the  water  below  is 
diminished  thereby,  as  whether  the  lower  proprietor  is  ma- 


105 

terially  injured  by  the  diminution;  injured  by  not  receiving 
the  benetit  in  due  proportion  of  the  enjoyment  to  which  he 
and  the  other  proprietors  are  entitled.  It  is  obvious  that 
the  use  of  water  for  the  purposes  of  irrigation  always  in- 
volves some  loss  by  evaporation  and  absorption,  and  must 
often  result  in  a  sensible  and  clearly  perceptible  reduction 
of  the  quantity  in  the  channel. 

An  entire  diversion  of  a  water-course  by  an  upjoer  ripar- 
ian propriet3r,  (or  a  diversion  of  apart  of  it)  for  irrigation, 
without  restoring  to  the  channel  the  excess  of  the  water  not 
actually  consumed,  is  never  allowed. 

Whether  or  not  a  diversion  of  water  is  reasonable  is  a 
question  not  so  much  as  mentioned  by  any  Avriter  or  judge. 
The  very  proposition  assumes  the  right  of  the  proprietor 
above  to  use  the  water  for  his  own  purposes,  to  the  exclusion 
of  the  proprietors  below,  a  proposition  inconsistent  with 
the  doctrine  universally  admitted,  that  all  proprietors  have 
the  same  rights  "  {Van  Hoesen  v.  Cournfri/,  10  Barb.,  518- 
522.) 

In  SanijDSon  v.  Hoddinot  (1  C.  B.,  N.  S.,  599)  the  Court 
said  that  the  detention  for  the  purposes  of  irrigation  was, 
under  the  circumstances  of  that  case,  necessarily  injurious; 
the  effect  being  ivhoUi/  to  prevent  the  natural  course  of  the 
stream  for  a  certain  number  of  hours.  In  Chaseman  v.  Bich- 
ards  (7  H.  of  L.  Cases,  319)  the  Lords  seem  to  refer  with 
approbation  to  the  "American"  doctrine  of  irrigation. 

Embrey  v.  Owen  (6  Exch.,  352)  decides  that  the  use  of  wa- 
ter by  a  defendant  for  irrigation,  was  no  injury  to  the  plain- 
tiff (a  mill-owner)  in  fact  or  law.  There  the  irrigation  took 
place  only  at  intermittent  periods  when  the  river  was  full, 
etc.  But  in  delivering  his  opinion  Parke  B.,  (after  quoting 
from  Kent)  said:  "  In  America,  as  maybe  inferred  from  this 
extract,  and  as  is  stated  in  the  judgment  of  the  Court  of 
Exchequer  in  Wood  v.  Wand,  a  very  liberal  use  of  the  stream 
for  the  purposes  of  irrigation  and  for  carrying  on  manufac- 
tures is  permitted.  So  in  France,  where  every  one  may  use 
it  '  en  bou  pe're  defamille,  etpotirson  pins  grand  avantage '  ; 
(Code  Civil,  Art.  610,  note  a,  by  Pailliet.)  He  may  make 
trenches  to  conduct  the  water  to  irrigate  his  land,  if  he  re- 
turns it  with  no  other  loss  than  that  which  irrigation  caused. 
In  the  above  cited  case  of  Wood  v.  Wand,  it  was  observed 
that  in  England  it  is  not  clear  that  a  user  to  that  extent 
would  be  permitted;  nor  do  we  mean  to  lay  down  that  it 
would  in  every  case  be  deemed  a  lawful  enjoyment  of  the  wa- 
ter, if  it  was  again  retnrned  into  the  river  witli  no  other 
diminution  than  that  which  was  caused  by  the  absorption 


106 

and  evaporation  attendant  on  the  irrigation  of  the  hinds  of 
the  adjoining  ])vopiietor.  This  mnst  depend  upon  the  cir- 
cumstances of  each  case.  On  the  one  hand,  it  could  not  be 
permitted  that  the  owner  of  a  tract  of  many  thousand  acres 
of  porous  soil,  abutting  on  one  part  of  the  stream,  could  be 
permitted  to  irrigate  them  continually  by  canals  and  dj-ains, 
and  so  cause  a  serious  diminution  of  the  quantity  of  water, 
though  there  was  no  other  loss  to  the  natural  stream  than 
that  aiising  from  the  necessary  absorption  and  evaporation 
of  the  water  employed  for  that  purpose;  on  the  other  hand, 
one's  common  sense  would  be  shoi-ked  by  supposing  that  a 
riparian  owner  could  not  dip  a  watering-pot  into  the  stream, 
in  order  to  water  his  gaiden,  or  allow  his  family  or  his  cattle 
to  drink  it.  It  is  entirely  a  question  of  der/ree,  and  it  is  very 
difficult,  indeed,  impossible,  to  define  precisely  the  limits 
which  separate  the  reasonable  and  permitted  use  of  the 
stream  from  its  wrongful  application;  but  there  is  often  no 
difficulty  in  deciding  whether  a  particular  case  falls  Avithin 
the  permitted  limits  or  not." 

And  in  the  same  case  the  learned  Judge  said:  "It  was 
very  ably  argued  before  us  b}'  tlie  learned  counsel  for  the 
plaintiffs  that  the  plaintiffs  had  a  rir/ht  to  to  the  full  flow  of 
the  water  in  its  natural  course  and  abundance,  as  an 
incident  to  their  property  in  the  land  through  which  it 
flowed;  and  that  any  abstraction  of  the  water,  however 
inconsiderable,  by  another  riparian  proprietor,  and  though 
productive  of  no  actual  damage,  would  be  actionable, 
because  it  was  an  injury  to  a  right,  and,  if  continued,  would 
be  the  foundation  of  a  claim  of  adverse  right  in  that  pro- 
prietor. 

"We  by  no  means  dispute  the  truth  of  this  proposition, 
with  respect  to  every  description  of  right.  Actual 
perceptible  damage  is  not  indispensable  as  the  foundation 
of  an  action;  it  is  sufficient  to  show  the  violation  of  a  right, 
in  which  case  the  law  will  presume  damage;  injuria  si7\e 
damno  is  actionable,  as  was  laid  down  in  the  case  of  Ashhy 
V.  White  (2  Ld.  Raym.,  938)  by  Lord  Holt,  and  in  many 
subsequent  cases,  which  are  all  referred  to,  and  the  truth  of 
the  proposition  powerfully  enforced,  in  a  very  able  judgment 
of  the  Jate  Mr.  Justice  Story  in  Webb  v.  lite  Portknul 
Manv/actxrivy  (om'paiiy  (3  Sumn.  Eep.,  189.)  But  in 
applying  this  admitted  rule  to  the  case  of  rights  to  running 
water,  and  the  anolagous  cases  of  rights  to  air  and  light,  it 
must  be  considered  what  the  nature  of  those  rights  is,  and 
what  is  a  violation  of  them. 

"The   law  as  to  flowing  water  is  now  put  on  its  right 


107 

footing  bj  a  series  of  cases,  begin ning  with  that  of  Wright 
V.  Howard  (1  Sim.  &  S.,  191.)  followed  by  Mason  v.  mil  (3 
B.  &  Ad.,  304;  5  Id.,  1)  and  ending  with  that  of  Wood  v. 
^anc/  (3  Exch.,  748)  and  is  fully  settled  in  the  American 
Courts.     See  3  Kent's  Comm.,  Lect.  52,  6  p.  439,  445. 

"The  right  to  haye  the  stream  to  flow  in  its  natural  state 
without  diminution  or  alteration  is  an  incident  to  the  property 
in  tlie  land  through  which  it  passes;  but  flowing  water  is 
publici  juris,  not  in  the  sense  of  that  it  is  a  homcm  racans, 
to  which  the  first  occupant  may  acquire  an  exclusiye  right, 
but  that  it  is  public  and  common  in  this  sense  only,  that  all 
may  reasonably  use  it  who  have  a  right  of  access  to  it,  that 
none  can  have  any  property  in  the  water  itself,  except  in  the 
particular  portion  which  he  may  choose  to  abstract  from  the 
stream  and  take  into  his  possession,  and  that  during  the 
time  of  his  possession  only.  See  5  B.  &  Ad.,  24.  But  each 
proprietor  of  the  adjacent  land  has  the  right  to  the  usufruct 
of  the  stream  which  runs  through  it. 

"This  right  to  the  benefit  and  advantage  of  the  water 
flowing  past  his  land  is  not  an  absolute  and  exclusive  right 
to  the  flow  of  all  the  Avater  in  its  natural  state;  if  it  were, 
the  argument  of  the  learned  counsel,  that  every  abstraction 
of  it  would  give  a  cause  of  action,  would  be  irrefragable; 
but  it  is  a  right  only  to  the  flow  of  the  water,  and  the  enjoy- 
ment of  it,  subject  to  the  similar  rights  oi  all  the  proprietors  of 
the  bank  on  each  side  to  the  reasonable  enjoyment  of  the 
same  gift  of  Providence. 

"  It  is  only  therefore  for  an  unreasonable  and  unauthorized 
use  of  this  common  benefit  that  an  action  will  lie;  for  such  a 
use  it  will." 

Professor  Washburn  (Ease,  and  Serv.,  234)  refers  "to 
two  or  three  recent  English  cases,"  where  the  subject  of 
irrigation  is  considered,  and  where  the  Courbs  take  occasion 
to  speak  of  the  American  cases  with  af^probation,  etc. 

Gould  (citing  in  the  notes  many  English  and  American 
decisions)  Avritvs  (Gould  on  Waters,  g  2x7):  "  The  right  of 
a  riparian  proprietor  to  divert  the  Avaters  of  a  stream  for  the 
purpose  of  irrigation  is  recognized  in  England,  and  gener- 
ally in  this  countiy.  According  to  the  later  decisions  in  both 
countries,  this  is  not  a  natural  Avant,  authorizing  an  exclu- 
sive or  undue  appropriation  by  one  proprietor,  but  the  use 
of  the  stream  for  this  purpose  must  be  reasonable,  and  must 
not  materially  attect  the  application  of  the  Avater  by  other 
riparian  proprietors.  "The  extent  oi  each  proprietor's  right 
to  thus  withdraAv  the  Avater  depends  upon  the  circumstances 
of  the  case.     The    owner   of  a   large   tract  of  porous  land, 


108 

abutting  on  one  part  of  the  stream,  could  not  lawfully  irri- 
gate such  land  contuuialb/hj  caunh  and  drains,  and  so  cause 
a  serious  diminution  of  the  quantity  of  water,  though  there 
may  be  no  other  loss  to  the  natural  stream  than  that  arising 
from  the  necessary  absorption  and  evaporation  of  the  water 
employed  for  the  purpose.  If  the  water  used  for  irrigation 
is  not  abstracted  on  a  person's  own  land,  but  is  withdraAvn 
at  a  distance  above  it.  or  returned  at  a  distance  beloiv  it,  this 
would  have  a  material  bearing  upon  the  question  of  reason- 
able use  with  respect  to  an  opposite  or  other  proprietor 
affected  by  such  diversion.  80,  a  riparian  proprietor  who 
obstructs  the  stream  by  a  dam  for  the  purpose  of  overflow- 
ing and  irrigating  his  land,  or  who  diverts  the  Avater  for  such 
purpose  excessively,  and  without  leturning  the  sktjjIus  into 
the  natural  channel,  is  liable  to  the  owner  of  a  mill  below, 
the  operation  of  which  is  thereby  impeded,  or  to  another 
proprietor  below,  who  only  uses  the  water  for  irrigation  and 
is  deprived  of  tJiat  rigid  to  an  unreasovable  extent.'" 

Weston,  J.  (in  Blancliard\.  Bahr,  8  Me.,  253),  observes: 
"  A  riparian  proprietor  may  make  a  reasonable  use  of  the 
water  itself  for  domestic  purposes,  for  watering  his  cattle 
or  even  for  irrig;>tion;  provided,  it  is  not  unreasonably  de- 
tained, or  essentially  diminished." 

In  Gilbert  v  Johnso)i  (30  Conn.,  180)  Butler,  J.,  speaks  of 
the  right  of  a  defendant  to  irrigate  as  Ihinted.  "  She  was 
bound  to  ap[)ly  tlie  water  in  such  a  reasonable  m  inner  and 
quantity  as  not  to  deprive  the  plaintiff  of  a  sufficient  sujoply 
for  his  cattle.  The  claim  of  the  defendant  was  that  she  had 
a  right  to  divert  the  tvhole  for  the  purposes  of  irrigation  re- 
gardless of  the  rights  of  the  plaintiff'.  Such  diversion  was 
unreasonable  and  therefore  illegal." 

And  in  Arnold  \.  Foote  (12  Wend.,  330):  "  The  defendant 
has  a  right  to  use  so  much  as  is  necessary  for  his  family  and 
cattle,  but  he  has  no  right  to  use  it  for  irrigating  his  meadow, 
if  he  thereby  deprives  the  plaintiff  of  the  reasonable  use  of 
the  M'ater  in  its  natural  channel." 

The  Supreme  Court  of  Massachusetts  has  said:  "Every 
man  through  whose  land  the  water  passes  may  use  it  for 
irrigating  his  land;  but  he  must  so  use  it  as  to  do  the  least 
possible  injury  to  his  neighbor  who  has  the  same  right." 
{Anthony  v.  Lupham,  5  Pick.,  175.) 

In  Neiohall  v,  Ireson  (8  Cush.,  595)  Chief  Justice  Shaw 
says:  "Even  in  cases "  (which  AWAaZ?  v.  Ireson  does  not 
necessarily  overrule)  "  Avhere  it  has  been  considered  that  a 
riparian  proprietor  had  authority  to  make  use  of  a  stream 
for  purposes  of  irrigation,  and  thus,  by  that  use,  divert  a 


109 

portion  of  it,  it  has  been  held  under  the  condition  that  such 
diversion  was,  under  all  the  circumstances,  a  reasonahle  use 
of  the  stream,  and  that  the  surplus  of  the  water  thus  used 
must  be  returned  into  its  natural  channel." 

The  same  learned  Judge  and  luminous  writer  has  very 
fully  considered  the  matter  of  irrigation  in  Elliott  v.  Fitchhurg 
R  Co.  (10  Gushing,  193,  4,  5.)  "This  appears  to  have  been 
a  small  stream  of  water;  but  it  must,  we  think,  be  consid- 
ered that  the  same  rules  of  law  apply  to  it,  and  regulate  the 
rights  of  riparian  proprietors,  through  and  along  whose  land 
it  passes,  as  are  held  to  apply  to  other  water-courses,  sub- 
ject to  this  consideration,  that  what  would  be  a  reasonable 
and  proper  use  of  a  considerable  stream,  ordinarily  carrying 
a  large  volume  of  water  for  irrigation  or  other  similar  uses, 
would  be  an  unreasonable  and  injurious  use  of  a  small  stream, 
just  sufficient  to  furnish  water  for  domestic  uses  for  farm- 
yards and  watering-places  for  cattle. 

"The  instruction  requested  by  the  plaintiff  is,  we  think, 
founded  on  a  misconception  of  the  rights  of  riparian  proprie- 
tors in  water-courses  passing  through  or  by  their  lands.  It 
presupposes  that  the  diversion  of  any  portion  of  the  water  of 
a  running  stream,  without  regard  to  the  fitness  of  the  pur- 
pose, is  a  violation  of  the  right  of  every  proprietor  of  land 
Ij'ing  below  on  the  same  stream,  so  that  without  suffering 
any  actual  or  perceptible  damage,  he  may  have  an  action  for 
the  sole  purpose  of  vindicating  his  legal  right. 

"  The  right  to  flowing  water  is  now  well  settled  to  be  a 
right  iiicident  to  propertj^  in  the  land;  it  is  a  right  publici 
Juris,  of  such  chai-acter  that  whilst  it  is  common  and  equal 
to  all  through  whose  land  it  runs,  and  no  one  can  obstruct  or 
divert  it,  yet,  as  one  of  the  beneficial  gifts  of  Providence, 
each  proprietor  has  a  right  to  a  just  and  reasonable  use  of 
it  as  it  passes  through  his  land;  and  so  long  as  it  is  not 
wholly  obstructed  or  diverted,  or  no  larger  appropriation  of 
the  water  running  through  it  is  made  than  a  just  and  reason- 
able use,  it  cannot  be  said  to  be  wrongful  or  injurious  to  a 
proprietor  lower  down.  What  is  such  a  just  and  reasonable 
use  may  often  be  a  difficult  question  depending  on  various 
circumstances.  To  take  a  quantity  of  water  from  a  large 
running  stream  for  agriculture  or  manufacturing  purposes 
would  cause  no  sensible  or  practicable  diminution  of  the 
benefit  to  the  prejudice  of  a  lower  proprietor;  whereas, 
taking  the  same  quantity  from  a  small  running  brook  passing 
through  many  farms  would  be  of  great  and  manifest  injury 
to  tho^e  below,  who  need  it  for  domestic  supply  or  Avatering 
cattle;  and  therefore  it  would  be  an  unreasonable  use  of  the 


no 

water,  and  an  action  would  lie  in  the  latter  case  and  not  in 
the  former.  It  is,  therefore,  to  a  considerable  extent  a 
qti&stion  of  degree;  still,  the  rule  is  the  same  that  each  pro- 
prietor has  a  right  to  a  reasonable  use  of  it  for  his  own  benefit, 
for  domestic  use  andior  manufactnring  and  agricultural  pur- 
poses. 

"It  has  sometimes  been  made  a  question  whether  a  riparian 
proprietor  can  divert  water  from  a  running  stream  for  pur- 
poses of  irrigation.  But  this,  we  think,  is  an  abstract  ques- 
tion, which  cannot  be  answered  either  in  the  affirmative  or 
negative,  as  a  rule  applicable  to  all  cases.  That  a  portion  of 
the  water  of  a  stream  may  be  used  for  the  purpose  of  irri- 
gating land  we  think  is  well  established  as  one  of  the  rights 
of  the  proprietors  of  the  soil  along  or  through  which  it 
passes.  Yet  a  proprietor  cannot,  under  color  of  that  right, 
or  for  the  actual  purpose  of  irrigating  his  own  land,  loholly 
abstract  or  divert  the  water-course,  or  take  such  an  un- 
reasonable quantity  of  water  or  make  such  unreasonable  use 
of  it,  as  to  deprive  other  proprietors  of  the  suhstantial  benefits 
which  they  might  derive  from  it  if  not  diverted  or  used  un- 
reasonably. The  point  may,  perhaps,  be  best  illustrated  by 
extreme  cases.  One  man,  for  instance,  may  take  water  from 
a  pereunial  stream  of  moderate  size,  by  means  of  buckets  or 
a  pump — for  the  modr  is  not  material — to  water  his  garden. 
Another  may  turn  a  similar  current  over  a  level  tract  of 
sandy  soil  of  great  extent,  which  in  its  ordinary  operation 
will  nearly  or  quite  absorb  the  whole  volume  of  the  stream, 
although  the  relative  position  of  the  land  and  stream  are 
such  that  the  sur})lus  water,  when  there  is  any,  is  returned  to 
the  bed  of  the  stream.  The  one  might  be  regarded  as  a 
reasonable  use,  doing  no  percejjtible  damage  to  any  lower 
proprietor,  whilst  the  other  would  nearly  deprive  him  of  the 
whole  beneficial  use,  and  yet,  in  both,  the  water  would  be 
used  for  irr-igation.  We  cite  a  few  of  the  leading  cases  in 
Massachusetts  on  this  subject:  Weston  v.  Alden,  8  Mass.,  136; 
Colburn  v.  lUchards,  13  Mass.,  420;  Cook  v.  Hidl,  3  Pick., 
269;  Anthony  v.  Lapham,  5  Pick.,  175. 

"This  rule,  that  no  riparian  proprietor  can  wholly  ab- 
stract or  divert  a  water-course,  by  which  it  would  cease  to 
be  a  running  stream,  or  use  it  unreasonably  in  its  passage, 
and  thereby  deprive  a  lower  proprietor  of  a  quality  of  his 
property,  deemed  in  law  incidental  and  beneficial,  necessar- 
ily flows  from  the  principle,  that  the  right  to  the  reasonable 
and  beneficial  use  of  a  running  stream,  is  common  to  all  the 
riparian  proprietors,  and  so,  each  is  bound  so  to  use  his  com- 
mon right  as  not  essentiall}-  to  prevent  or  interfere  with  an 


Ill 

equally  beneficial  enjoymeut  of  the  common  right,  by  all  the 
proprietors.  Were  it  otherwise,  and  were  it  an  inflexible 
rule  that  each  lower  proprietor  has  a  right  to  the  lull  and 
entire  flow  of  the  natural  stream,  without  diminution,  accel- 
eration or  retardation  of  the  natural  current,  it  would  follow 
that  each  lower  proprietor  would  have  a  right  of  action 
against  any  upper  proprietor,  for  taking  any  jjortion  of  the 
water  of  the  stream  for  any  purpose;  such  a  taking  would 
be  a  disturbance  of  his  right;  and  if  taken  by  means  of  a 
pump,  a  pipe,  a  drain  or  otherwise,  though  causing  no  sub- 
stantial damage,  it  would  be  a  nuisance,  and  warrant  the 
lower  proprietor  iu  entering  the  close  of  the  upper,  to  abate 
it.     (Colhurn  v.  Rkliards,  13  Mass.,  420). 

"  It  would  also  follow,  as  the  legal  and  practicable  result, 
that  no  proprietor  could  have  any  beneficial  use  of  the  stream, 
without  an  encroachment  on  another's  right,  subjecting  him 
to  actions  toties  quoties,  as  well  as  to  a  forciable  abatement 
of  the  nuisance.  If  the  plaintift*  could,  in  a  case  like  the 
present,  have  such  an  action,  then,  every  proprietor  on  the 
brook  to  its  outlet  in  Nashua  river,  would  have  the  same, 
and  because  the  quantity  of  diminution  is  not  material, 
every  riparian  proprietor  on  the  Nashua  would  have  the 
same  right,  and  so  every  proprietor  on  the  Merrimac  river 
to  the  ocean.  This  is  a  sort  of  reductio  ad  ahsurdinn,  which 
shows  that  such  cannot  be  the  rule  as  was  claimed  by  the 
plaintiff." 

In  Evans  v.  Merriweatlier  (3  Scam.  496),  the  Supreme 
Court  of  Illinois  said:  "  The  use  must  be  a  reasonable  one. 
Now  the  question  fairly  arises,  is  that  a  reasonable  use  of 
running  water  by  the  upper  proprietor,  by  which  the  fluid  is 
entirely  consumed  ?  To  answer  the  question  satisfactorily  it 
is  proper  to  consider  the  wants  in  regard  to  the  element  of 
water.  These  wants  are  either  natural  or  artificial.  Nat- 
ural are  such  as  are  absolutely  necessary  to  be  supplied  in 
order  to  his  existence.  Artificial  such  only  as,  by  supply- 
ing them,  his  comfort  and  prosperity  are  increased.  To 
quench  thirst  and  for  household  purposes,  water  is  abso- 
lutely indispensable.  In  civilized  life  water  for  cattle  is 
also  necessary.  These  wants  must  be  supplied  or  both  man 
and  beast  will  perish.  The  supply  of  a  man's  artificial 
wants  is  not  necessary  to  his  existence;  he  could  live  if  wa- 
ter was  not  employed  in  irrigadng  his  lauds,  or  in  propelling 
his  machinery.  In  countries  differently  situated  from  ours, 
with  a  hot  and  arid  climate,  water  doubtless  is  indispensa- 
ble for  the  cultivation  of  the  soil,  and  in  these  water  for 
irrigation  would  be  a  natural  loarit.'" 


112 

There  cau  be  little  doubt,  under  the  authorities,  that  for 
a  riparian  proprietor  entirely  to  consume  water  (except 
ordinarily  for  domestic  uses,  etc.)  is  to  use  it  unreasonably, 
as  is  said  in  Evans  v.  Merriweather,  and  that  was  the  question 
involved  in  that  case.  The  distinction  between  natural  and 
artificial  "wants"  seems  to  be  derived  from  a  distinction 
previously  recognized,  and  which  has  sometimes  been  desig- 
nated as  a  difference  between  the  use  of  water  for  "  ordinary" 
and  "extraordinary"  purposes.  Thus  Lord  Kingsdown  (in 
Miner  v.  Gilman,  12  Moore,  P.  C,  156)  said:  "By  the 
general  law  applicable  to  riparian  proprietors,  each  has  a 
right  to  what  may  be  called  the  ordinary  right  of  a  use  of 
water  flowing  past  his  land;  /or  instance,  to  the  reasonable 
use  of  the  water  for  domestic  purposes  and  for  his  cattle; 
and  this,  without  regard  to  the  efl'ect  that  such  use  may 
have,  in  case  of  dedciency  upon  the  proprietors  lower  down 
the  stream.  But,  further,  he  may  have  the  use  of  it  for  any 
purpose,  or  loliat  may  he  li  emed  the  extraordinary  use  of  it, 
provided  he  does  not  thereby  interfere  with  the  lawful  use  of 
it  by  other  proprietors  either  above  or  below  him.  Subject 
to  this  condition  a  riparian  proprietor  may  dam  up  a  stream 
for  the  purpose  of  a  mill,  or  divert  the  water  for  the  purpose 
of  irrigation.  But  he  has  no  right  to  interrupt  the  regular 
flow  of  the  stream,  if  he  thereby  interferes  with  the  lawful 
use  of  the  water  b}*  other  proprietors,  and  inflicts  on  them  a 
sensible  injnri/." 

The  real  difference  here  pointed  out  between  the  classes  of 
uses  is  that  (as  is  assumed)  water  may  be  used  for  ordinary 
purposes,  without  regard  to  the  effects  of  such  use,  in  case 
of  deficiency  below;  while  with  reference  to  extraordinary 
uses  the  effects  on  those  below  must  also  be  considered  in 
determining  its  reasonableness. 

Lord  Kingsdown's  "  instances"  indicate  that  he  was  using 
them  as  illustrations  of  the  relative  importance  of  the  uses 
by  him  mentioned.  It  may  perhaps  be  doubted  whether  an 
arbitrary  classification  can  be  made  which  is  applicable 
everywhere  where  the  common  law  prevails. 

Even  the  use  of  water  of  a  stream  for  potation  may  not  be 
of  paramount  importance,  when  the  stream  is  small,  and 
the  particular  proprietor  is  well  supplied  with  water  for 
such  purpose  by  living  springs  independent  of  the  creek. 
And  it  may  happen,  all  the  conditions  being  considered, 
that  the  exhaustion  of  an  entire  stream  by  large  bands  of 
cattle,  ought  not  to  be  permitted.  Or,  indeed,  it  might  be 
that  a  flouring-mill  would  be  of  more  relative  consequence 
than    the    cultivation   of    the   ground.     (See   Escriche    with 


113 

respect  to  riparian  rights  in  Mexico.)  This  hist,  however, 
is  hardly  a  supposable  case  since  the  general  introduction 
of  steam  as  a  propelling  power.  The  distinction  between 
natural  and  artificial  "wants,"  would  be,  under  supposable 
conditions,  somewhat  fanciful.  The  urgent  and  pressing 
necessity  of  a  particular  use,  as  distinguished  from  another, 
may  itself  depend  on  circumstances.  We  cannot  say  that 
it  is  ahvays  reasonable,  in  a  "hot  and  arid  climate,"  to 
elevate  irrigation  to  the  rank  of  primary  uses,  to  which 
drinking  usually  belongs.  If  that  should  be  adopted  as  the 
uniform  rule,  the  upper  proprietor  might  perhaps  exhaust  all 
the  water  for  irrigation  to  the  entire  exclusion  of  those 
below  him,  "a  proposition  inconsistent  with  the  doctrine 
universall}'  admitted  that  all  proprietors  have  the  same 
right."  (rati  Haesen  v.  Coventry,  supra.)  The  reasonable 
usefulness  of  a  quantity  of  w^ater  for  irrigation  is  alw.iys 
relative;  it  does  not  depend  on  the  C()nvenience  ol  or 
profitable  results  to  the  particular  proprietor;  but  upon  the 
reasonable  use,  reference  being  had  to  the  needs  of  all  the 
other  proprietors  on  the  stream.  It  depends,  in  other 
words,  on  all  the  circumstances. 

We  anticipate  the  objection  that  this  is  not  an  absolute 
rule  at  all,  but,  as  said  by  the  Judges  in  the  opinions  quoted 
from,  the  verj'  nature  of  the  common  right  is  such  that  a 
precise  rule  as  to  what  is  reasonable  use  by  any  one  propri- 
etor for  irrigation  cannot  be  laid  down.  A  stream  may  be 
so  small  that  any  use  for  irrigation  may  deprive  all  the  others 
of  any  like  use;  and  the  same  may  be  true  of  a  larger  stream 
where  the  use  is  by  several  of  a  large  number  of  proprietors. 
The  effect  might  be  that  while  there  might  be  sufficient  wa- 
ter to  supply  several  for  irrigation,  there  would  not  be 
enough  for  all,  and  so  all  might  be  deprived  of  the  benefit. 
But  the  private  interests  of  all  would  in  most  cases,  if  not 
in  every  case,  lead  to  an  avoidance  of  the  supposed  evil.  It 
is  not  to  be  doubted  that  the  riparian  proprietors  w'ould  set- 
tle by  convention  upon  a  plan  by  wdiich  each  could  secure  a 
reasonable  use  for  irrigation  purposes;  as  by  anthoiizing 
each  to  stay  the  flow  at  recurring  periods;  or  otherwise  dis- 
tributing it  for  their  mutual  and  common  benefit. 

The  right  of  the  riparian  proprietors  to  a  reasonable  use 
of  the  water  of  the  stream  for  the  purposes  of  irrigation  is 
recognized  in  many  of  the  California  cases  hereinbefore  re- 
ferred to,  and  in  (Anaheim  Company  v.  Semi-lVop.  Company, 
64  Cal.,  185.) 


114 


XV J. 


On  behalf  of  the  defendcmi  certain  witnesses  gave  testimony 
tending  to  prove  that,  a/ter  the  commencement  of  the  action 
and  issue  joined,  and  during  the  trial  of  this  action,  there 
ivas  no  watercourse  as  claimed  and  no  channel  through 
which  water  could  have  fioived.  The  Court  erred  in  reject- 
ing evidence  offered  hy  the  plaintiffs,  in  reply,  tending  to 
prove  that  after  the  dates  mentioned  hy  said  ivitnesses  for  de- 
fendant there  ivas  a  watercourse  and  channel. 

The  Court  below  found — as  its  findings  are  construed  by 
both  parties — that  no  watercourse  (connected  with  Kern 
river  or  otherwise)  runs  by  or  tlirough  any  of  the  lands  of 
the  plaintiffs,  ^e  cannot  say  but  there  was  a  substantial 
conflict  with  respect  to  that  matter,  and  in  accordiince  with 
the  established  rule,  must  affirm  the  judgment  and  order, 
unless  at  the  trial  the  Court  erred  in  rejecting  or  admitting 
evidence,  bearing,  or  claimed  to  bear,  on  the  question  of 
the  existence  of  the  watercourse. 

The  Court  below  refused  to  permit  the  plaintiffs  to  intro- 
duce certain  evidence,  after  the  defendant  had  closed  on  the 
ground  that  the  same  was  merely  cumulative. 

One  exception  saved  by  the  plaintiffs  related  to  an  offer 
of  testimony  as  to  a  place  spoken  of  as  De  Weher  road- 
crossing.  With  regard  to  that  exception  we  think  it  may 
fairly  be  argued  from  the  record  that  the  defendant  intro- 
duced evidence  tending  to  prove  there  was  no  channel  at  any 
point  where  the  De  Weber  road  crosses  the  swamp,  at  a 
lime  several  yetirs  before  the  commencement  of  this  action. 
But  we  also  think  that  the  ])laintiffs  had  already  given  evi- 
dence that  at  the  time  and  subsequent  to  the  time  mentioned 
by  defendants  witnesses,  the  De  Weber  road  did  cross  a 
channel.  We  cannot  say,  therefore,  that  the  Court  erred 
ill  refusing  to  permit  further  evidence  in  reply,  with  respect 
to  that  matter. 

The  plaintiffs,  in  making  out  their  case,  introduced  wit- 
nesses, who  stated  that  at  various  times  prior  to  the  diver- 
sion of  water  by  the  defendant,  they  had  passed  along 
Baena  Vista  Slough,  and  that  there  was  a  channel  through- 
out its  alleged  length.  As  to  several  of  these  witnesses,  it 
might  be  questioned  whether  their  inspection  was  not  broken 
and  interrupted.  Crocker  said  that,  as  he  passed  along,  the 
channel  was  in  places  concealed  from  his  vision;  McCrary, 
that  the  slough  or  channel  existed  at  each  section  line;  SHU, 


115 

that  he  had  crossed  through  nearly  every  quarter  section 
of  the  swamp.  fa  argnmeiit,  however,  counsel  for 
phiiutiffs  have  insisted,  that  in  opening  their  case,  they 
proved  a  continuous  slough  from  Bueua  Vista  Lake  to 
Tulare  Lake,  not  merely  as  an  inference  from  its  existence 
in  diflt'erent  places,  but  as  a  physical  object,  visible  to  their 
witnesses  from  one  lake  to  the  other. 

Assuming,  as  claimed  by  plaintiffs'  counsel,  that  some  of 
their  witnesses  pursued  the  alleged  slough  throughout  its 
entire  length,  viewing  each  and  every  portion  of  it,  it  would 
be  diflficult  to  sa}'  on  what  ])rinciple  plaintiffs  could  demand 
the  absolute  right,  by  way  of  reply,  to  contradict  the 
declarations  of  witnesses  for  the  defendant  that,  at  or  about 
the  times  when  the  plaintiffs'  witnesses  had  stated  there  was 
a  channel  from  Bueua  Vista  Lake  to  a  point  below  the 
plaintiffs'  lands,  there  was  in  places  )io  channel  between  the 
lake  and  that  point. 

Defendant  called  as  witnesses  Murray  F.  Taylor  and 
others,  who  testified  that,  after  the  commencement  of  the 
action,  and  after  answer  filed  herein  and  the  trial  was  com- 
menced, they  had  [)assed  from  one  side  to  the  other  of  the 
swamp  (avoiding  disconnected  sloughs  and  ponds),  with- 
out crossing  a  channel.  Plaintiffs  offered  to  prove  by 
McCrary  that  he  subsequently  ran  a  certain  line  through 
portions  of  township  27  south,  range  22  east,  and  "what 
natural  objects"  he  found  on  the  line  he  ran.  As  no  wit- 
ness on  the  part  of  the  defendant  had  testified  with  respect  to 
such  a  line,  in  the  township  named,  the  Court  properly  sus- 
tained an  objection  to  the  offer. 

But  the  plaintiffs  also  offered  in  reply  to  show  by  the  wit- 
ness McCrary  "  that  at  each  one  of  the  lines  Avhere  the  wit- 
nesses for  defendant  testify  they  have  crossed,  not  only  has 
this  line  been  run  where  they  testified  to,  but  that  the  line 
has  been  run  by  this  witness  from  one-half  a  mile  to  three- 
quarters  of  a  mile  on  each  side  of  that  line,  and  that  an  ex- 
amination has  been  made  between  these  lines  as  to  all  chan- 
nels and  natural  features  of  the  country  between  the  lines  on 
each  side  of  the  line,"  etc.  And  plaintiffs  offered  to  prove 
the  same  things  by  Mr.  Harold  ""who  accompanied  Mc- 
Crary;" and  bv  Huntley,  Beard,  Noble  and  others. 

Defendant  might  have  insisted  on  the  offer  being  made 
more  definite;  that  plaintiffs'  counsel  should  name  the  wit- 
nesses whose  testimony  they  intended  to  rebut,  and  specify 
the  exact  fact  they  disputed;  as  the  fact  that  there  was  no 
channel  where  defendant's  witnesses  crossed.  The  offer  to 
prove  by  McCrary  "  in  case  he  found  sloughs  or  channels  or 


116 

awjtliiug  of  tliat  kind  they  were  leveled  and  their  width 
ascertained"  did  not  absolutely  exclude  the  idea  that  he 
found  no  slough  or  channel.  But  no  such  specific  objection 
to  the  oflfer  was  made,  and  it  sufficiently  ai>])ears  from  the 
transcript  that  both  the  learned  Judge  (who  ruled  that  the 
oflfer  was  of  cumulative  testimony)  and  counsel  understood 
the  evidence  on  the  part  of  the  defendant  against  which  the 
offer  was  directed. 

The  defendant's  witness,  McMurdo,  testified  tliat  in  April, 
1881  (after  suit  brought  and  answer),  there  was  no  water 
flowing  at  points  in  the  alleged  slougli  above  the  lands  of 
the  plantiffs,  and  his  testimony  tended  to  prove  that  at  the 
same  time  no  water  was  flowing  and  no  channel  existed  at 
another  point  also  above  such  lands.  After  defendant  rested 
plaintiffs  oflfered  to  prove  that  within  thirty  days  prior  to 
June  1,  1881,  the  witness  McCrary,  with  Beard  and  Huntley, 
had  gone  from  Headquarters  (a  place  above  the  points  where 
McMurdo  had  stated  no  water  flowed)  in  a  hoat  to  the  Bone- 
stell  House,  which  is  below  certain  lands  of  the  plaiutiflfs. 

Taylor,  Jastro,  Cross  and  Barker,  witnesses  for  the  de- 
fendant, testified  to  crossing  the  swamp  on  t!ie  14th  of  April, 
1881  (after  the  commencement  of  this  action),  and  to  the  ab- 
sence of  a  channel  on  the  route  they  pursued.  One  Estee 
conducted  the  party  from  a  point  near  his  house,  on  the 
west  side  of  the  SAvamp,  to  the  Round  Corral  near  the  east 
side.  Estee  was  not  examined  by  the  defendant.  In  reply 
the  plaintifl's  called  him  and  asked,  "  What  did  you  see  when 
making  that  crossing  as  regards  sloughs  or  channels?"  The 
Court  sustained  an  objection  to  the  question  and  the  plain- 
tiflfs  excepted  to  the  ruling. 

Witnesses  for  defendant,  McMurdo  and  Fillebrown,  testi- 
fied to  the  running  of  the  line  (after  the  trial  had  com- 
menced) across  the  body  of  swamp  land,  ascertaining 
levels  along  that  line;  and  to  the  making  of  a  profile  of  the 
same.  They  also  testified  that,  in  running  the  line,  they 
came  to  a  pond  which  constituted  no  part  of  a  continuous 
slough  or  channel,  but  was  without  inlet  or  outlet.  One  G. 
AV.  Smith  was  called  by  plaintiffs  who  testified  that  he  fol- 
lowed the  same  line;  that  he  also  came  to  a  pond,  as  to 
which  there  was  evidence  tending  to  prove  it  was  the  pond 
mentioned  by  defendant's  witnesses,  to  which  there  was 
both  inlet  and  outlet. 

Other  oflf'ers,  similar  in  character,  were  made  by  pLiin- 
tiflfs,  to  which  defendant  objected.  To  the  ruling  of  the 
Court  sustaining  the  objection  of  defendant  to  the  several 
offers  plaintiffs  duly  excepted. 


117 

We  think  the  first  question  presented  bj  these  rulings 
may  fairly  be  stated  thus:  Defendant  gave  evidence  tend- 
ing to  prove  that,  during  the  trial,  there  were  places  along 
the  line  of  the  alleged  slough  and  channel  Avhere  there  was 
in  fact  no  channel — breaks  in  the  continuity. 

The  question  to  be  considered  is  not  modified  by  the 
claim  of  respondent  that  the  effect  of  its  evidence  was  to 
establish  the  absence  of  any  channel  through  which  the 
water  was  wont  to  flow,  and  to  prove  that,  on  the  extraor- 
dinary occasions  when  the  w;iter  came  into  the  slough,  it 
soon  ceased  to  flow  in  a  defined  channel,  but  spread  through- 
out the  swamp.  If  the  water  did  not  flow  with  regular 
periodicity,  or  if,  flowing  periodically,  it  had  no  defined 
channel  (other  than  the  whole  swamp),  the  plaintiffs  had  no 
cause  of  action;  in  the  first  case,  because  there  was  no 
watercourse;  in  the  second,  because  there  was  no  such 
watercourse  as  described  in  the  complaint;  and  perhaps, 
also,  because  the  plaintifi's,  being  owners  only  of  swamp 
lands  (even  conceding  the  water  in  the  swamp  might  consti- 
tute a  stream),  were  owners  merely  of  the  bed  of  the  stream, 
and  were  not  riparian  proprietors.  (Gould  on  Waters,  148; 
Lyon  V.  Fishmongers  Co.,  1  App.  Cases,  662;  L.  R.,  10  Ch. , 
679.)  But  the  testimony,  to  contradict  which  the  offers  of 
the  plaintiffs  were  made,  was  testimony  that  the  swamp  land 
had  been  crossed  on  divers  lines  without  the  persons  so 
crossing  it  coming  into  contact  with  any  defined  channel,  or 
distinct  evidences  of  such.  There  may  be  a  continuous 
watercourse  through  a  body  of  swamp  lands.  The  plaintifi's 
had  given  evidence  tending  to  establish  the  existence  of 
such  a  watercourse.  The  evidence  of  defendant  was  to  es- 
tablish that  I  here  was  no  such  watercourse  by  proof  that 
there  was  none  at  places  where  its  witnesses  crossed  the 
swiimp.  That  such  testimony  tended  to  prove,  oi',  if  true, 
proved,  that  there  was  no  watercourse  touching  the  plaintiffs' 
lands,  is  not  an  objection  to  the  counter  testimony  ofl'ered. 
Testimony  in  reply  is  directed  against  the  precise  facts  tes- 
tified to  by  defendant's  witnesses,  not  against  the  inferences 
which  may  be  drawn  from  them.  The  witnesses  testified 
that  they  crossed  the  swamp  on  certain  lines  and  found  no 
channel.  Did  the  Court  err  in  disallowing  the  offer  of 
plaintiffs  to  prove  that  at  such  places  there  was  in  fact  a 
channel  at  or  subsequent  to  the  times  mentioned  by  de- 
fendant's witnesses? 

All  agree  that  it  is  within  the  discretion  of  the  trial  court 
to  adinJi  additional  evidence  in  support  of  the  plaintiff's 
case  after  the  defendant  has  rested.     Of  course,  it  is  always 


118 

safer  to  admit  evidence  claimed  to  be  in  reply,  if  the  Court 
entertains  doubt  of  its  admissibility.     Nevertheless  the  re 
spondent  here  has  a  right  to  insist  that  it  is  for    the   appel- 
lants to  point  ont  plain  error  in  the  rejection  of  evidence. 

The  rules  as  to  the  transfer  of  the  l)urden  of  proof  are  not 
always  determinative  of  the  rules  as  to  testimony  in  reply. 
The  burden  of  proof  is  .shifted  bj*  every  species  of  evi- 
dence strong  enough  to  establish  a  jjrima  facie  case.  (2  Best 
Ev.,  473.)  But  this  only  means  that  there  is  a  necessity  of 
evidence  to  answer  the /9ri>?ia /rtcie  case,  or  it  will  prevail. 
(Heineman  v.  Heard,  62  N.  Y.,  455.)  A  party  on  whom  is 
the  atfii-mative  cannot  reserve  a  portion  of  his  evidence  un- 
til the  opposite  party  has  exhausted  his  evidence  to  nega- 
tive that  ojffered  in  the  first  instance.  (Taylor  on  Ev.,  Sec. 
386.) 

Questions  as  to  the  admissibility  of  evidence  in  reply, 
offered  by  the  plaintiff,  arise  ordinarily  where  the  answer 
consists  of  denials  of  the  atfii'mations  of  the  complaint. 
Where  the  answer  avers  new  matter  which  it  is  for  the  de- 
fendant to  prove,  evidence  on  the  part  of  plaintiff  to  meet 
the  evidence  given  by  the  defendant  in  support  of  his  affirm- 
ative plea,  is  not  given  in  reply  or  "  rebuttal,"  as  the  term 
is  used  in  this  connection.  Rebutting  testimony  is  ad- 
dressed to  euid'iiice  produced  by  the  opposite  party,  not  to 
his  pleading. 

It  seems,  indeed,  at  one  time  to  have  been  held  in  Eng- 
land that  when  two  pleas  were  tendered — as  the  general  is- 
sue, and  another  plea  of  atfirmntive  matter  constituting  a 
defense — the  plaintiff"  was  compelled  to  prove  in  advance  the 
non-existence  of  the  affirmative  matter.  Lord  Ellenborough 
held  the  general  rule  to  be  "  where,  b}'  pleading  or  by  means 
of  notice,  the  defense  is  hnoivn,  the  counsel  for  the  plaintiff 
is  bound  to  open  his  whole  case  in  chief,  and  cannot  proceed 
in  parts."  {Beese  v.  Smith.  2  Stark,  N.  P.  C,  31;  Delanney 
V.  Mitchell,  1  Stark,  N.  P.  C,  439).  The  practice  seems 
long  to  have  been  settled  in  the  English  courts,  however, 
that  where  the  general  issue  is  pleaded,  and  the  plaintiff  is 
also  notified  of  a  special  defense,  he  has  his  option  to  give 
all  the  evidence  he  intends  to  offer  to  rebut  the  averments 
of  the  special  plea  or  notice,  in  the  first  instance,  or  to  give 
none  of  such  evidence,  and  lo  reserve  all  to  be  given  in  re- 
ply. {Brown,  v.  Murray,  Ryan  &  Moody,  254).  In  this  coun- 
try the  right  of  the  plaintiff  to  reserve  all  his  evidence,  to 
meet  the  evidence  of  the  defendant  in  support  of  his  special 
or  affirmative  plea,  has  always  been  recognized. 

And  so  where  the  plea  or  answer  consists  of  denials  alone, 


119 

under  whicb,  however,  affirmative  matter  is  provable  which 
may  constitute  a  defense,  the  plaintifi"  is  entitled  to  rebut  the 
defendant's  evidence  of  such  affirmative  matter.  In  a  uote 
to  Gresicald  v.  Kemp  (Carr  &  M.,  G35)  the  reporters  say: 
"One  test  whether  the  plaintiff  is  entitled  to  call  witnesses 
in  reply  to  the  defendant's  proofs  seems  to  be  whether  the 
defendant's  defense  is  disclosed  by  the  plea.  ^  *  *  jjg 
cannot  reasonably  be  called  on  to  give  contradictory  evi- 
dence by  anticipation  of  proof  which  the  defendant  might 
never  give,  or  which  if  given  the  plaintiff  could  not  foresee." 
As  was  said  by  Bronson,  J.,  in  HoUisler  v.  Bender,  "The 
substance  of  the  allegation  to  be  fried,  rather  than  the  par- 
ticular form  of  the  pleading,  must  determine  where  tlie  onus 
lies;  particularly  where  the  defendant  is  not  required  to 
plead  the  particular  matter  on  which  he  intends  to  rely."  (1 
Hill,  153). 

In  that  case  the  action  was  assumpsit;  the  plea  non- 
assumpsit,  under  which,  by  the  New  York  practice,  the  de- 
fendant, without  actually  controverting  the  promise,  might 
prove  payment,  release,  accord  and  satisfaction,  etc.  If, 
said  Judge  Bronson,  any  of  these  defenses  were  pleaded 
specially,  the  defendant  would  clearly  have  the  affirmative 
of  the  issue  "  and  the  burden  of  proof  is  the  same  when  the 
defense  is  affirmative  matter  sought  to  be  proved  under  a 
denial  of  the  promise." 

The  rule  is  not  that  the  plaintiff  must  anticipate  all  evi- 
dence that  may  be  admitted  under  the  denials  of  an  answer. 
The  rule  assumes  that  evidence  may  be  admitted  which  he 
cannot  reasonably  be  expected  to  anticipate. 

Mr.  Croswell,  in  his  note  to  Section  469  of  Gi-eenleaf  on 
Evidence  (14th  ed.),  says: 

"There  is  considerable  conflict  in  the  decisions  in  regard 
to  the  order  of  proof  and  the  course  of  trial  in  the  different 
States.  In  some  of  the  States  the  party  is  only  required  to 
make  a  prima  facie  case  in  the  opening,  and  may  reserve 
confirmatory  proof  in  support  of  the  very  points  made 
in  the  opening,  till  he  finds  upon  whit  points  his  open- 
ing case  is  attacked,  and  then  fortify  it  upon  those  points. 
(Clayes  v.  Ferris,  10  Vt.,  112.)  But,  in  this  State  (Massa- 
chusetts) the  defendant  must  put  in  all  his  evidence 
in  the  first  instance,  and  the  plaintiff  in  his  reply  is 
confined  to  fortifying  those  points  in  his  case  which  are 
attacked  by  defendant.  And,  in  some  of  the  States,  it  is 
understood,  that  this  process  of  making  and  answering  the 
plaintiff's  case  is  allowed  to  be  repeated  an  indefinite  nuni- 
ber  of  times.     But,  at  common  law,  the  plaintiff  puts  in  his 


120 

whole  evidence  upon  every  point  which  he  opens,  aud  the 
defendant  then  puts  in  his  entire  case;  aud  the  plaiutilf's 
reply  is  limited  to   new  points,  first  opened  by  defendant. " 

Investigation  shows  that  the  preponderance  of  autiiority  is 
in  favor  of  what  Mr.  Croswell  calls  "  the  common  law  rule," 
aud  it  has  never  been  suggested  that  any  other  rule  obtains 
in  California.  The  rule  has  beeu  expressed  in  different 
terms  b}-  writers  aud  Judges.  Mr.  Croswell  says  the  evi- 
dence to  rebut  may  be  contined  to  "new  points  first  opened 
by  the  defendant."  Mr.  Taylor  states  it  negatively  (On  Evi- 
dence, Section  386).  In  Hastings  v.  Palmer,  Cowen,  J., 
said:  "Strictly  speaking  the  plaintiff  or  party  holding  the 
affirmative  is  bound,  in  the  first  instance,  to  introduce  all  the 
evidence  on  his  side,  except  that  which  operates  merely  to 
answer  or  qualify  the  case  as  it  is  sought  to  be  made  out  by 
his  adversary's  proofs."  (20  ^Yend.,  225.)  And  Starkie 
wrote:  "  After  the  defendant  has  adduced  his  evidence  the 
plaintiff"s  counsel  at  once  proceeds,  without  an}-  observations, 
to  tender  any  evidence  ho  may  have  in  reply;  but  this  must 
be  confined  by  negativing  specific  acts  sworn  to  by  defen- 
dant's witnesses  which  he  could  not  be  expected  to  have 
anticipated."  (On  Evidence,  side  p.  609,  10th  ed.)  We  are 
brought  back  to  the  proposition  that  where  the  plaintiff  is 
not  informed  by  tiie  answer  of  new  matter  which  constitutes 
a  defense,  he  is  entitled  to  addm  e  evidence  in  reply  to  the  evi- 
dence given  to  establish  such  matter. 

It  is  admitted  that  it  is  no  objection  to  evidence  in  reply 
to  an  affirmative  defense  that  it  may  strengthen  the  plaintiff's 
original  case.  And,  upon  just  principles,  it  would  seem 
that  if  the  new  matter  offered  by  the  defendant  may  consti- 
tute an  affirmative  defense,  the  plaintiff  is  not  precluded 
from  replying  to  it,  because  such  new  matter  may  also  have 
a  tendency  to  weaken  or  negative  plaintiff's  case  as  originally 
presented. 

A  watercourse  has  been  s  .id  to  consist  of  "  bed,  banks  and 
water."  The  water  need  not  flow  continually,  but  it  would 
seem  the  flow  must  be  periodical,  such  as  ma}-  be  expected 
during  a  portion  of  each  year.  It  must  be  made  to  appear 
that  the  water  usually  flows  through  a  regular  channel  with 
banks  or  sides.  (Angell,  Sec.  4.)  It  may  be  conceded  that 
it  was  for  the  plaintitis  here  to  establish  a  natural  stieam 
flowing,  at  least  periodically,  up  to  the  time  of  the  diver- 
sion, and  that  to  justify  a  permanent  injunction  the  Court 
must  have  been  satisfied  that  the  water  would  have  contin- 
ued to  flow,  except  for  the  diversion.  The  Court  would  be 
authorized  to  deny  the  decree  prayed  for  if    the  evidence 


121 

showed  tlmt  the  cliannel  proved  to  exist  when  the  diversion 
occurred,  had  disappeared  (and  ceased  to  exist),  as  the  re- 
sult of  natural  causes,  and  not  as  a  consequeuce  of  any  acts 
of  the  defendant,  or  of  interference  by  others. 

Evidence  that  there  were  no  indications  of  a  channel  at  a 
certain  date  would  perhaps  tend  to  prove  that  there  was  no 
channel  at  a  previous  date.  Bnt — unless  we  can  say  as  law 
that  the  channel  could  not  have  gone  out  of  existence — such 
evidence  would  not  establish  conclusively  that  the  channel 
never  existed.  Nor  would  it  cieate  the  disputable  presump- 
tion that  a  "thing  once  proved  to  exist  continues  as  long  as 
is  usual  with  things  of  that  nature."  (C.  C.  P.  1,963,)  The 
presumption  that  a  thing  existing  in  the  present  existed  at 
any  time  in  the  past — if  it  could  be  considered  to  be  a  pre- 
sumption— would  be  the  reverse  of  the  Code  presumption. 
The  efiVet  of  the  evidence  must,  of  course,  depend  upon  the 
permanent  or  transitory  nature  of  the  thing  itself.  Apply 
the  Code  presumption  to  the  case  before  us.  Let  us  sup- 
pose a  watercourse  was  proved  at  or  before  the  commence- 
ment of  the  trial.  The  disputable  presumption  is  that  it 
continued  "as  long  as  is  usual  with  things  of  that  nature." 
We  can  not  say  how  long  a  channel  for  water  will  continue. 

It  is  not  essential  to  a  watercourse  that  the  banks  shall  be 
unchangeable,  or  that  there  shall  be  everywhere  a  visible 
change  in  the  an-^le  of  ascent,  marking  the  line  between 
bed  and  banks.  The  law  cannot  fix  the  limits  of  variation 
in  these  and  other  particulars.  As  was  said,  in  effect,  by 
Curtis,  J.  (Hoivardx.  Ingersoll,  13  How.,  U.  S.,  428),  the  bed 
and  banks,  or  the  channel,  is  in  all  cases  a  natural  object, 
to  be  sought  after,  not  merely  bj'  the  application  of  any 
abstract  rules,  but  "like  other  natural  objects  to  be  sought 
for  and  found  by  the  distinctive  appearances  it  presents." 
Whether,  however,  worn  deep  by  the  action  of  the  water, 
or  following  a  natural  depression  without  any  marked  erosion 
of  soil  or  rock;  whether  distinguished  by  a  difference  of 
vegetation,  or  otherwise  rendered  perceptible — a  channel  is 
necessary  to  the  constitution  of  a  watercourse. 

Of  course  we  cannot  judicially  declare  that  a  channel  is 
of  such  a  nature  that  it  can  never  cease  to  exist.  Both  the 
evidence  and  findings  herein  show  that,  as  a  result  of  the 
action  of  water,  channels  have  been  closed  and  new  chan- 
nels formed.  We  cannot  say  but  the  indications  of  a  chan- 
nel may  be  removed  by  other  natural  forces.  We  cm  con- 
ceive that  along  the  course  of  a  stream  there  may  be  shallow 
places  where  the  water  spreads,  and  where  there  is  no  dis- 
tinct ravine  or  gully.      Two  ascending  surfaces   may  rise 


122 

from  the  line  of  meeting-  very  gracluallj^  for  an  indefinite 
distance  on  each  side.  In  such  case,  if  water  flowed  pe- 
riodicallj  at  the  lowest  portion  of  the  depression  it  flowed 
in  a  cl];inne],  notwithstanding  the  fact  that,  the  water  being 
ivithdraioi,  the  "  distinctive  appearances  "  that  it  had  ever 
flowed  there  would  soon  disappear. 

Causes  are  ordinarily  tried  with  reference  to  the  condi- 
tion of  things  prior  to  and  when  an  action  is  commenced. 
The  j)leadings  (except  supplemental)  relate  to  that  date, 
and  the  evidence  is  confined  to  the  averments  or  denials  of 
the  pleadings.  A  plaintiff  seeking  the  peculiar  relief  here 
sought  must  satisfy  the  Court  that,  unless  the  injunction  be 
made  perpetual,  he  will  be  deprived  of  water  in  the  future. 
But  the  continuation  of  tlie  status  quo,  at  the  commence- 
ment of  the  action,  is  an  hi/ereuce.  The  plaintifis  here 
were  not  bound  to  prove  by  independent  evidence  that  the 
channel  continued  to  exist  after  suit  brought.  The  i>sue 
was,  had  they  a  cause  of  action  when  the  suit  was  com- 
menced. If  they  had  it  was  because  of  conditions  exist- 
ing when  the  water  of  Kern  river  was  diverted  and  when 
tliey  commenced  their  proceedings,  and  this  is  none  the  less 
so  because,  in  order  to  secure  the  decree  they  prayed  for, 
the  conditions  must  be  such  as  would  authorize  the  Court 
to  infer  that  they  would  continue  in  the  future.  The  infer- 
ence would  always  have  to  be  drawn,  whether  educed  from 
facts  proved  to  exist  prior  to  suit  brought,  or  from  facts  ex- 
isting at  the  time  of  the  trial.  It  was  not  the  dut}'  of  plain- 
tifis under  the  pleadings,  in  the  first  instance,  to  prove  the 
continued  existence  of  a  channel  after  the  action  was  begun, 
except  so  far  as  it  might  be  implied  from  its  existence  pre- 
viously. Even,  therefore,  if  the  evidence  of  the  defendant 
as  to  the  al)sence  of  a  channel  at  times  after  the  action  and 
after  the  trial  was  commenced,  be  treated  merely  as  evi- 
dence tending  to  prove  its  non-existence  before,  the  plain- 
tififs  were  not  bound  to  anticipate  it  by  contradictory 
proofs.  The  pleadings  gave  no  notice  that  such  evidence 
would  be  ofi'ered. 

But  the  evidence  given  by  the  defendant  also  tended  to 
prove  that  the  channel  or  the  distinctive  appearance  of  it, 
had  ceased.  It  is  not ///*/30.s.si7>/fi  that  they  had  ceased  be- 
tween the  dates  testified  to  by  the  plaintifis'  witnesses  and 
those  of  the  examinations  made  by  the  witnesses  for  the  de- 
fendant. If  the  channel  had  so  ceased  to  exist  that  fact 
would  constitute  an  affirmative  defense.  The  defense  was 
not  pleaded  in  terms,  and,  as  the  evidence  tended  to  prove 
that  a  channel  had  never  existed,  it    was  admitted    without 


123 

objection.  That  fuct  ought  not  to  deprive  tlie  plaintiffs  of 
their  right  to  reply  to  the  new  matter  constituting  an  af- 
firmative defense  of  which  the  answer  had  not  informed 
them.  They  could  not  reasonably  have  been  expected  to 
anticipate  that  the  defendant  would  offer  evidence  of  new 
matter  of  which  the  answer  did  not  give  them  notice. 

Further,  the  testimony  of  certain  witnesses  for  the  de- 
fendant was  not  merely  to  the  bald  fact  that  there  was  no 
cliannel  at  a  certain  time.  The  facts  to  which  they  testified 
were  that,  on  an  occasion,  they  passed  from  one  side  to  the 
other  of  the  lauds  through  which  the  slough  had  been  said 
to  run,  without  crossing  or  coming  to  any  slough  or  chan- 
nel. The  Court  refused  to  permit  the  plaintiffs,  in  repl}^  to 
produce  evidence  tending  to  prove  that  on  the  occasion  re- 
ferred to  the  defendant's  witnesses  ilid  meet  with  a  slough 
or  channel.  Thus,  the  defendant  having  called  some  of 
those  who  made  the  trip  together,  the  Court  rejected  the 
plaintiffs'  offer  to  call  another  of  the  same  party  to  contra- 
dict the  statement  of  those  examined  b}'  the  other  side.  It 
is  difficult  to  distinguish  this  from  the  other  offers  made, 
but  it  presents  the  question  sharply.  In  this  instance  there 
can  be  no  possible  doubt  that  the  offered  testimony  related 
to  the  matter  testified  to  by  the  witnesses  for  the  de- 
fendant. 

Our  conclusion  is,  that  the  Court  below  erred  in  sustain- 
ing the  defendant's  objections  to  offers  of  evidence,  with 
respect  to  the  existence  of  a  slough  or  cliannel,  made  by 
plaintiffs  after  the  defendant  had  rested. 

XVII 

The  Court  heloiv  erred  in  rejecting  all  or  some  of  the  certificates 
of  purchase  offered  by  the  plaintiffs  in  rephj. 

In  their  amended  complaint,  the  plaintiffs  allege:  "That 
plaintiffs  w^ere,  at  the  commencement  of  this  action,  the 
owners  in  fee,  seized  and  possessed  (and  for  more  than  a 
year  theretofore  they  and  their  grantors  were  such  owners) 
of  all  those  lauds  situate  in  the  County  of  Kern,  in  the 
State  of  California,  and  particularly  described  (according  to 
the  survevs  bj  the  authority  of  the  United  States  of  Amer- 
ica, and  referred  to  the  Mount  Diablo  base  and  meridian) 
in  a  certain  schedule  which  is  hereto  annexed,  marked 
'Schedule  M,' and  made  a  part  of  this  complaint.  That 
said  lands  are  swamp  and  overflowed  lands,  and,  as  such, 
belonged  to  the  State  of  California  until  the  year  1876  and 


124 

later,  in  which  year,  and  at  various  times  afterward,  and 
before  the  commencement  of  this  action,  they  were  granted 
by  the  State  to  the  plaintiffs  and  their  grantors." 

The  action  was  commenced  September  2,  1880. 

In  its  answer  to  the  amended  complaint  the  defendant 
avers:  "That  heretofore,  to  wit:  on  or  about  the  4tli  day 
of  May,  A.D.  1875,  defendant's  grantors,  acting  in  the  full 
faitli  and  a  bnnafde  belief  that  a  large  portion,  to  wit:  more 
than  seventy-four  thousand  (74,000)  inclies,  measured  under 
a  4-inch  pressure,  of  the  waters  of  said  Kem  river  were  un- 
used, vacant,  unappropriated,  and  free  and  open  to  appro- 
priation and  use,  posted  a  certain  notice  of  appropriation  of 
water  on  the  north  bank  of  said  river  in  Kern  count}'.  State 
of  California,  at  a  point  on  or  about  tlie  southwest  quarter 
of  section  thirteen  (13),  in  township  twenty-nine  (29)  south, 
range  twenty-seven  (27)  east,  Moun;  Diablo  base  and  merid- 
ian, according  to  the  United  States  surveys,  wherein  they 
claimed  and  whereby  they  notified  plaintiffs,  plain liffs'  grant- 
ors, and  all  persons  whomsoever  it  might  concern,  that  they 
claimed  and  appropriated  and  proposed  and  intended  to  take 
out  and  divert,  use  and  consume,  a  large  part  and  portion, 
to  wit:  seventj'-four  thousand  (74,000)  inches,  measured  un- 
der a  4-inch  pressure,  of  the  flowing  waters  of  said  Kern 
river,  for  the  purpose  of  irrigating  certain  lands  in  said  no- 
tice described,  and  of  supplying  thereunto  and  thereon  for 
other  purposes  in  said  notice  set  forth.  That  within  ten 
days  after  the  posting  of  said  notice,  to  wit:  on  the  4th  day 
of  May,  A.D.  1875,  the  said  notice  was  duly  recorded  in 
the  ofiice  of  the  County  Recorder  of  said  Kern  county,  in 
Book  1  of  Water  Rights,  ]iage  37,  to  which  said  record  ref- 
erence is  here  made,  and  which  said  record  is  made  a  part 
hereof.  That  defendant's  said  grantors  thereby  appropri- 
ated and  acquired  the  said  amount  of  flowing  waters  of 
said  Kern  liver,  with  the  right  to  take  out,  divert,  use  and 
consume  the  same  for  the  uses  and  purposes  in  said  notice 
mentioned,  all  of  wdiich  appropriations,  rights  and  proper- 
ties they  (defendant's  said  grantors)  on,  to  wit:  the  18th  day 
of  May,  A.D.  187),  granted,  bargained  and  sold,  trans- 
ferred, assigned  and  conveyed  to  this  defendant.  That, 
within  twenty  da3"s  after  the  posting  of  said  notice  as  afore- 
said, to  wit:  on  or  about  the day  of    May,    a.d.   1875, 

defendant,  for  the  purpose  of  utilizing  said  \vaters  of  Kern 
river,  in  the  manner  and  at  the  places  in  said  notice  men- 
tioned, commenced  the  construction  of  that  certain  ditch, 
or  canal,  known  as  the  Calloway  Canal,  and  being  the  same  as 
in  said  complaint  described, and  thereafter  and  thenceforth  de- 


125 

fendant  continuously  and  diligently  prosecuted  the  work  on 
said  canal  until  the  same  was  completed,  and  expended  there- 
on in  the  construction  thereof  large  and  vast  sums  of  mon- 
ey, amounting  in  the  aggregate,  to  wit:  ninety  thousand 
(890,000)  dolhirs.  Tliat  duriiig  the  constrncti'on  of  said 
canal,  defendant  diverted  and  used  the  aforesaid  amount  of 
water  in  irrigating  and  fertilizing  the  lands  in  said  notice 
described,  and  for  stock  and  other  beneficial  purposes  on 
said  described  lands,  and  defendant  has  continued  so  to  use 
said  amount  of  water  from  and  after  the  completion  thereof." 

At  the  trial,  the  plaintiffs,  as  part  of  their  evidence  in 
chief,  produced  patents  from  the  State  of  California  grant- 
ing to  the  plaintiffs,  or  their  grantors,  certain  of  the  lands 
described  in  the  complaint.  The  several  patents  are  dated 
January  18,  1876,  February  17,  1876,  September  11,  1876, 
and  June  15,  1877.  And  the  plaintiffs  also  gave  in  evidence 
the  judgment-roll  in  an  action  brought  by  the  People  of 
the  State  of  California  against  John  Center  and  others,  by 
the  judgment  in  wliich  action  it  was  decreed  that  the 
plaintiffs  herein  have  certain  of  the  lands  described  in  the 
complaint  in  the  present  action,  and  that  they  were  entitled 
to  patent  for  the  same  as  provided  in  "  An  Act  lo  provide 
for  determining  the  rights  of  parties  to  certain  swamp  and 
overflowed  lands  in  Fresno  and  Kern  counties,  approved 
March  20,  1878." 

The  decree  in  the  said  action,  Ihe  People,  etc.,  v.  John 
Center  et  al.,  was  entered  September  17,  1878. 

We  are  about  to  consider  whether  the  Court  below  erred 
in  rejecting,  when  they  were  offered  by  plaintiffs,  all  or 
any  of  the  certificates  of  purchase  issued  by  the  State  Land 
Office  to  assignors  of  the  plaintiffs.  The  Court  below  held 
that  there  was  no  stream.  As  we  have  seen,  iiowever,  the 
Court  erred  in  refusing  to  admit  certain  evidence  bearing 
on  that  issue.  In  deciding  the  question  as  to  the  admission  of 
the  certificates,  we  must  assume  that  there  was  evidence  of 
a  stream  running  from  Kern  river  to  some  of  the  lands  de- 
scribed in  the  complaint,  and  to  a  tract  described  in  at  least 
one  of  the  certificates.  It  does  not  follow,  however,  ihat 
all  the  certificates  would,  in  any  event,  have  been  admis- 
sible. It  is  to  be  borne  in  mind  that,  if  the  Court  below 
had  found  a  watercourse  to,  through,  or  past  any  one  or 
more  of  the  tracts  described  in  the  complaint,  only  such  of 
the  certificates  of  purchase  would  have  been  admissible  as 
showed  the  purchase  of  tracts  s>  found  by  the  Court  to  be 
touched  or  traversed  by  the  watercourse.  If  at  the  trial 
the  Court  found,  on  sufficient  evidence,  that  no  watercourse 


126 

existed,  or  that  none  of  the  hinds  described  in  the  com- 
plaint bordered  on  it,  and  had  committed  no  error  with 
respect  to  tlie  admission  of  evidence  rehiting  to  tliese  mat- 
ters, it  is  very  ch;ar  that  no  material  error  would  have  been 
committed  by  rejecting  all  of  the  certificates  of  purchase. 
It  is  asserted  by  counsel  for  respondent  that,  in  any  view  of 
the  case,  no  evidence  was  given  tending  to  prove  that  the 
stream  ran  through  or  touched  the  lauds  described  in  any 
of  the  certificates  of  purchase  offered,  except  one. 

If  the  Court  erred  in  rejecting  one  of  the  certificate:^  the 
consequence',  so  far  as  it  should  inflnence  the  action  of  this 
Court,  is  the  same  as  if  all  were  erroneously  rejected.  But 
in  case  there  shall  be  a  letrial  in  the  Superior  Court,  it  is 
perhaps  important,  and  it  is  certainly  proper,  to  limit  any 
general  statement  in  such  manner  as  that  it  may  be  made 
applicable  to  the  evidence  as  it  -hall  be  presented  to  that 
court  when  the  case  shall  be  retried.  If  we  shall  say  in 
general  terms  that  the  certificates  of  purchase  ought  to  have 
been  admitted,  this  must  be  understood  in  a  limited  sense, 
and  to  apply  only  to  the  certificates  with  reference  to  the 
lands  described  which  there  is  evidence  that  they  are  lauds 
by  or  through  which  the  watercourse  passed.  All  the  sec- 
tions or  fractional  sections  mentioned  in  any  one  certificate 
constitute  a  single  tract  of  land.  If,  however,  lands  have 
been  granted  by  patent,  and  the  patent  was  issued  on  the 
cancellation  of  more  than  one  certificate,  the  patent  can 
operate  by  relation  (for  the  purpose  of  this  suit)  to  the  date 
of  those  certificates  o?i7//  the  lands  described  in  which  border 
on  the  stream. 

The  defendant  having  given  evidence  to  prove  the  matters 
so  as  aforesaid  pleaded  in  its  answer,  the  plaintiffs  as  evi- 
dence in  reply  oftered  cerlificales  of  purchase,  dated  Septem- 
ber 30,  1872,  for  sections  and  portions  of  sections  (being 
part  of  tiie  lands  described  in  the  complaint)  in  township  25 
south,  range  21  east,  portions  of  sections  in  township  26 
south,  range  21  east;  sections  and  portions  of  sections  in 
township  25  south,  range  22  east;  sections  and  portions  of 
sections  in  township  26  south,  range  22  east;  each  of  said 
certificates  being  signed  and  issued  by  the  Register  of  the 
State  Land  Office,  and  the  same  appearing  to  have  been  can- 
celed by  issuance  of  patent;  also  like  certificates  for  por- 
tions of  the  lands  described  in  the  complaint,  one  dated 
February  5,  1877,  and  thiee  March  2,  1874. 

By  the  1st  Section  of  the  Act  of  March  27,  1872,  "to  put 
in  effect  the  provisions  of  the  Civil  Code  relative  to  water 
rights,"  Title  8  of  Part  IV,  of  Division  2  of  the  Civil  Code, 


127 

went  into  full  force  ami  operation  on  the  first  day  of  May 
1872.     (Stats.  1871-2,  p.  622.)     All  the  certificates  of  pur- 
chase above  mentioned  were  therefore   issued  after  the  title 
of  the  Civil  Code  became  operative. 

It  is  manifest  that  if,  as  contended  by  counsel  for  appel- 
lants, the  State  is  a  "riparian  proprietor"  within  the  mean- 
ing of  Section  1422  of  the  Civil  Code,  the  defendant  could 
acquire  no  rights  to  Avater  by  appropriation,  as  against  the 
grantees  of  tiio  lands  from  the  State,  even  as  against  those 
who  became  such  after  the  appropriation  was  made.  But,  in 
that  case,  no  injury  was  done  to  the  appellants  by  the  re- 
jection of  all  the  certificates  of  purchase,  since  the  appel- 
lants, as  part  of  the  evidence  in  chief,  had  given  in  evi- 
dence their  patents  issued  after  the  appropriation. 

In  order,  however,  to  meet  inferences  Avhieh  may  be 
diawn  from  the  assumption  that  the  State  is  a  "riparian 
proprietor,"  within  the  meaning  of  the  section,  it  is  proper 
to  consider  that  matter.  It  is  urged  by  counsel  that  the 
title  of  the  Civil  Code  onl}'  relates  to  the  right  to  appropri- 
ate waters  upon  public  lands  of  the  United  States;  the 
same  right  growing  out  of  priority  of  appropriation,  recog- 
nized by  the  Courts  for  many  years  past,  and  recognized 
and  confirmed  by  the  Acts  of  Congress  of  1866  and  1870. 
That  the  State,  in  the  exercise  of  its  police  power,  and  of  a 
trust  assumed  on  its  part,  has  only  regulated  the  conduct  of 
its  subjects,  going  on  lands  of  the  United  States  (under  an 
implied  or  express  license),  with  reference  to  this  matter  of 
appropriation.  It  is  admitted  the  State  may  give  the  right 
to  appropriate  water  on  its  lands,  but  it  is  contended  the 
State  has  not  done  so,  and,  on  the  contrary,  has  reserved 
the  rights  of  all  riparian  proprietors,  of  whom  it  is  one. 

The  grant,  however,  is  general.  "The  right  to  the  use 
of  flowing  water,  etc.,  may  be  acquired  by  appropriation." 
(C.  C,  1410.)  No  class  of  lauds  is  mentioned  from  which 
water  may  be  diverted,  yet,  as  to  its  lands,  the  Uinted  Slates 
is  a  riparian  proprietor.  True,  the  United  States  had  al- 
ready recognized  the  right  of  appropriation  on  its  lands, 
but  if  the  Acts  of  1866  and  1870  had  never  been  passed  it 
cannot  be  doubted  that  Section  1422  of  the  Civil  Code  would 
have  been  held  not  to  apply  to  public  lauds  of  the  United 
States.  This  would  have  been  necessary  to  give  effect  to 
the  title,  and  to  carry  out  the  apparent  intention  of  the  Leg- 
islature in  the  light  of  the  history  of  the  countiy  to  which 
reference  has  been  made.  Thus  by  implication  the  United 
States,  as  a  riparian  proprietor,  is  excluded  from  the  bene- 
fit of  the  sectiou.      "The  rights  of  riparian  proprietors  are 


128 

not  aftecied  bj  the  provisious  of  this  title."     (C.  C,,  li'1'2.) 

The  citizens  of  the  State  liave  never  been  prohibited  from 
entering  upon  the  public  lauds  of  the  State.  The  courts 
h.ive  always  recognized  a  right  in  the  prior  possessor  of 
lauds  of  the  State  as  against  those  subsequently  intruding 
upon  such  possession.  The  same  principle  would  protect  a 
prior  appropriator  of  water  against  a  subsequent  appropria- 
tor  from  the  same  stream.  It  is  not  important  here  to  in- 
quire whether  as  against  a  subsequent  appropriation  of 
■water,  a  prior  appropriator  of  land,  through  which  the 
stream  may  run,  would  have  the  better  right.  It  is  enough 
to  say  that,  as  between  two  persons,  both  mere  occupants  of 
land  or  water  on  the  State  lands,  the  courts  have  deter- 
mined controversies.  The  implied  permission  by  the  Gen- 
eral Government  to  private  persons  to  enter  upon  its  lands 
has  been  assumed  to  have  been  given  by  tlie  State,  wath  ref- 
erence to  the  lands  of  the  State.  And  the  State,  for  the 
maintenance  of  peace  and  good  order,  has  protected  the 
citizen  in  the  acquisition  and  enjoyment  on  its  lands  of  cer- 
tain property  rights  obtained  through  possession — perhaps 
the  mode  by  which  all  property  was  originally  ac- 
quired. In  view  of  these  facts,  we  feel  justified  in  saying 
that  it  was  the  legislative  intent  to  exclude,  as  well  the  State 
as  the  United  States,  from  the  protection  which  is  extended 
to  riparian  proprietors  by  Section  1422  of  the  Civil  Code. 

We  have  elsewhere  had  something  to  say  with  reference 
to  the  class  of  persons  whose  rights  are  protected  by  Sec- 
tion 1422.  For  the  present,  we  shall  assume  that  it  includes 
those  who  may  become  riparian  proprietors  at  any  time  be- 
fore an  appropriation  of  water  is  actually  made  in  accord- 
ance with  the  provisions  of  the  Civil  Code. 

.A-ssuming  this,  the  certificates  of  purchase  above  men- 
tioned were  admissible  in  evidence,  if  the  other  certificate-;, 
which  were  of  a  date  anterior  to  the  enactments  of  the  Civil 
Code,  were  admissible. 

To  the  introduction  of  each  of  the  certificates  of  purchase, 
when  otiered,  counsel  for  defendant  objected  on  the  grounds 
that  it  was  "  irrelevant,  immaterial  and  not  proper  testimony 
in  rebuttal." 

It  has  been  suggested  that  the  plaintiffs  were  precluded 
from  showing  title  in  themselves  prior  to  1876,  by  reason  of 
their  allegation  in  the  complaint  "that  the  lands  belonged 
to  the  State  of  California  until  the  year  1876,  and  later." 
If  they  were  estopped  by  that  allegation,  they  would  have 
been  equally  estopped  if  the  certificates  had  been  ofi'ered 
as  part  of  their  evidence  iu  chief.     But  we  think  they  were 


129 

uot  so  esto^jped.  The  lauds  are  swamp  lauds,  and  are  al- 
leged to  liave  beeu  giauted  by  the  State.  If  the  averment 
hiid  uot  beeu  inserted  that  the  lands  belon<,'ed  to  the  State 
up  to  the  grants — the  presumption  would  have  been  that 
they  belonged  to  the  State  up  to  the  date  of  the  patents,  or, 
at  least,  up  to  the  initiation  of  the  proceedings  which  euded 
in  patents.  Yet,  notwithstanding  tlie  presumption,  the 
plaintifis  would  have  been  entitled  to  prove  that  tlteij  owLed 
them  at  a  date  previous  to  tliat  at  which  the  complaint  alleges 
they  became  the  owuers.  The  averments  are,  in  effect,  that 
the  lauds  belonged  to  the  State  until  they  were  grauted  to 
plaintiff's.  The  dates  of  the  grants,  as  pleaded,  are  imma- 
terial, if  they  were  in  fact  granted  before  the  diversion  of 
water.  As  to  the  averment  of  previous  ownership  by  the 
State,  it  is  an  averment  of  a  fact  of  which  we  would  take 
judicial  notice,  and  may  be  disregarded.  If  the  complaint 
iiad  simply  stated  that  the  plaintiffs  had  become  the  owners 
at  a  certain  date,  by  virtue  of  grants,  would  it  be  an  objec- 
tion to  the  admission  of  a  grant  of  an  earlier  date  that  the 
State  then  owned  the  lands"?  Under  our  system,  that  which 
the  law^  presumes  need  not  be  alleged,  and,  if  alleged,  ought 
not  to  determine  the  rights  of  parties,  unless  the  presump- 
tion, independent  of  the  allegation,  would  determine  them. 

The  certificates,  in  connection  with  the  patents,  would 
have  been  admissible  as  part  of  plaintiffs'  evidence  in  chief 
under  the  averment  of  ownership  in  fee.  In  connection  with 
the  patents  they  would  have  proved  a  title  to  every  intent, 
as  against  the  State  and  its  grantees,  as  of  the  dates  of  the 
certificates.  In  Union  Mill  v.  Dangherry  (2  Sawyer,  215) 
Hillyer,  J.,  said:  "It  is  settled  that  the  entry  and  payment 
and  certificate  thereof  convey  the  equitable  title.  Thereafter 
the  land  ceases  to  be  public,  and  the  Government  has  no 
right  to  sell  it  again,  but  holds  the  legal  title  in  trust  for 
the  purchaser.  *  *  '^  As  possessors  and  equitable  own- 
ers they  (the  holders  of  certificates)  are  entitled  to  enjoy  all 
the  incidents  to  the  land  and  its  ownership,  as  well  as  the 
land  itself.  The  patent,  when  issued,  relates  back  to  the 
original  entry,  the  inception  of  the  title,  so  far  as  is  neces- 
sary to  prote"^ct  the  purchaser's  title  to  the  land."  Gibson  v. 
Chouteau,  13  Wall.,  92;  4  Wall.,  410;  Id.,  232;  30  Cal.,  648; 
3  How.,  441.) 

The  certificates  offered  by  the  plaintiffs  herein  were  evi- 
dence of  a  right  of  entry  by  the  assignors  of  the  plaintiffs 
and  of  the  receipt  by  'the  State  of  part  of  the  purchase 
monev;  in  the  last  respect  differing  from  certificates  issued 
to  pre-emptioners  under  the  laws  of  the  United  States,  which 


130 

evidence  the  receipt  of  tlie  whole  of  the  purchase  money. 
The  right  to  the  possession  might  have  been  terminated  by 
a  failure  to  pay  the  balance  of  the  purchase  money.  But  the 
patents  issued  when  the  certificates  were  canceled  proved 
payment  of  the  balance  of  the  purchase  money  and  related 
to  the  dates  of  the  certificates.  The  certificates  and  patents 
would  have  proved  that  plaiutifis  and  their  assignor-^  had 
been  entitled  to  the  possession  of  the  lands  iu  law  and  equity, 
from  those  dates.  They  certainly  would  have  shown  them 
to  have  been  the  owners  so  far  as  the  fact  of  ownership  could 
have  been  maile  the  basis  for  relief  in  an  action  like  the 
present. 

There  can  be  no  doubt  but  the  equitable  owner  in  posses- 
sion of  a  tract  of  laud  bordering  a  stream  is  entitled  to  re- 
lief in  a  court  of  equity  against  the  wrongful  diversion  of 
water  of  the  stream.  Even  at  law,  as  between  parties 
claiming,  under  patents  from  the  general  or  State  Govern- 
ment for  the  same  land,  the  junior  patent  wmII  prevail  if  the 
proceedings  to  secure  it  were  commenced  before  those  cul- 
minating in  the  senior  patent.  Here  the  plaintifl's  have 
patents  which  relate  back  to  the  certificates  (the  contracts 
of  the  plaintiffs  antl  their  assignors  having  been  fully  per- 
formed) so  as  to  protect  them  in  their  title  to  the  lands, 
Avith  all  I  heir  incidents.  Assuming  that  the  rights  of  these 
parties  are  to  be  determined  by  the  decision  of  the  ques- 
tion —  Did  the  plaintiffs  acquire  aright  to  their  lands  he/ore 
the  defendant  appropriated  the  waters — the  patents  of  the 
])laintifts  related  to  the  certificates  of  purchase  as  against 
the  defendant's  appropriation. 

Inasmuch  as  a  sale  of  lands  includes  a  sale  of  the  coi- 
poreal  hereditament,  a  right  to  the  flow  of  the  water,  it  is 
c'early  the  intentien  of  the  statutes  providing  for  sale  of  the 
State  lands,  that  the  purchaser  shall  be  protected  from  a  de- 
|)rivation  of  any  of  the  valuable  incidents  of  ownership,  un- 
til he  shall  lose  his  right  to  purchase  by  failure  to  complete 
jjis  contract;  to  reserve  and  withdraw  such  lands  from  the 
privilege  accorded  to  appropriators  to  divert  waters  from 
State  lands.  To  hold  otherwise,  and  so  to  construe  the 
Code  as  that  he  who  has  made  part  payment  for  land,  and 
entered  into  possession  under  a  contract  with  the  State 
guaranteeing  to  him  a  complete  title  in  case  he  shall  pay 
the  balance,  can  be  deprived  of  the  benefit  of  that  which 
is  a  valuable  incident  of  ownership  (notwithstanding  he 
shall  subsequently  have  fulfilled  his  contract  according  to 
its  terms)  would  operate  manifest  injustice.  We  are  not 
now  speaking  of  the  power  of  the  State.     Doubtless  it  may 


131 

sell  its  lauds  with  such  limitations  as  it  may  deem  propei'. 
But  if  the  Code  provisions  aud  the  statutes  providing  for 
tlie  disposition  of  State  lauds  can  be  held  to  meau  that  the 
purchaser  shall  have  riparian  rights  as  against  subsequent 
appropriators,  it  would  lead  to  iniquitous  results  to  con- 
strue the  provisions  in  such  manner  as  that  he  shall  not  se- 
cure the  benefit  of  those  rights  in  case  he  performs  his  con- 
tract; in  other  words,  that  his  patent  shall  not  relate  to  his 
certificate  of  purchase. 

So  far  as  the  certificates  merely  tended  to  prove  title  in 
the  lands  at  and  prior  to  a  wrongful  'liversion  of  water  b}' 
defendant  they  were  not  admissible  in  reply.  !*roof  tint 
they  were  owners  at  the  time  of  the  diversion  complained 
of,  that  is,  the  diversion  which  occurred  after  they  became 
owners  as  alleged,  was  part  of  their  original  case.  The 
plaiutift's  were  fully  informed  by  the  answer  that  defendant 
relied  upon  a  right  to  appropriate  water  acquired  from  the 
State  prior  to  the  dates  of  the  patents.  But  that  was  an 
atfirmative  plea,  the  averments  of  which  it  was  for  the  de- 
fendant to  establish.  If  when  the  plaintifl's  rested  they  had 
proved  title  hy  patent,  the  existence  of  a  watercourse  run- 
ning through  the  lands,  and  diversion  by  defendant  subse- 
quent to  the  patents,  they  had  proved  their  case,  not  merely 
prima  facie,  but  conclusively,  in  tho  absence  of  proof  of  the 
affirmative  matter  set  forth  in  the  answer.  They  were  not 
bound  to  disprove  in  advance  the  appropriation  pleaded. 
Having  made  out,  or  attempted  to  make  out,  their  case  in 
the  first  instance,  the  plaintiti's  would  not  have  been  entitled, 
in  contradiction  of  evidence  given  on  the  part  of  the  defend- 
ant, under  the  denials  of  the  answer,  that  the  plaintiffs  were 
not  the  owners  at  the  time  of  the  alleged  diversion,  to  pro- 
duce further  evidence  in  support  of  their  title.  But,  after 
tiie  defendant  rested,  the  plaintiff's  were  authorized  to  meet 
the  evidence  in  support  of  the  plea  that  the  water  was  ap- 
propriated by  evidence  that  the  waters  were  never  legally 
appropriated  by  the  defendant.  If  the  waters  could  be  ap- 
propriated, as  against  the  lands  described  in  the  complaint, 
only  while  they  remained  the  lands  of  the  State,  then  evi- 
dence that,  when  the  appropriation  was  made,  the  lands 
were  not  the  lands  of  the  State  was  admissible,  and  none 
the  less  admissible  because  it  also  proved  that  the  plain- 
tiff's or  their  assignors  were  then  the  owners.  Such  evidence 
was  not  evidence  in  reply  to  new  matter  proved  under  the 
denials  of  the  answer,  but  was  evidence  relating  to  an  issue 
made  by  the  plea  of  the  defendant;  an  issue  as  to  which  the 
defendant  had   the  affirmative.     It  was  evidence  which  by 


132 

every  interpretation  of  the  rule  the  plaintift's  had  a  right  to 
re-erve  uutil  after  the  defendant  had  closed. 

It  has  been  suggested  that  the  phiintitis  gave  some  evi- 
dence in  chief  tending  to  prove  theiv  possession  prior  to  the 
appropriation.  We  are  not  aware  that  the  Eaglisli  rule, 
which  at  one  time  prohibited  a  plaintiff,  in  case  he  gave  any 
evidence  tending  to  negative  an  affirmative  defence  in  the 
first  instance,  from  giving  farther  like  evidence  in  reply, 
was  ever  enforced  in  this  country,  or  in  eqaifi/.  Moreover, 
the  mere  prior  occupation  of  lands  of  tlie  State  cm  consti- 
tute no  reason  for  preventing  the  diversion  of  water  flowing 
through  them  by  one  expressly  authorized  by  the  State  to 
divert  the  water  from  the  occupant. 

In  opposition  to  these  views,  and  as  adjudications  that 
the  certificates  of  puridiase,  and  possession  under  them,  gave 
tlie  plaintiffs  no  riparian  rights,  and  that  tlie  certificates,  as 
against  the  defendant,  were  not  evidence  even  pi  inia  facie 
of  the  payment  of  an}-  portion  of  the  purchase  money,  the 
counsel  for  respondent  <ite  fSmith  v.  Logan,  1  West  Coast 
Reporter,  391;  Covington  v.  Beckev,  5  Nev,,  281;  Lake  v. 
Tolles,  8  Id.,  285;  Brewer  v.  Hall,  36  A.rk.,  351;  Lans  kde  \. 
Daniels,  100  U.  S.,  118;  Megerle  v.  Ashe,  33  Cal.,  84;  Smith 
V.  Athern,  34  Id.,  505;  Daniels  v.  La)isdiiJe.  43  Id.,  41; 
Osijood  V.   Water  Company,  o^o  Id.,  574. 

It  is  suggested  that  the  certificates  were  not  even  prima 
facie  evidence  of  the  receipt  of  any  money  by  the  State  as 
against  the  defendant,  alleged  to  be  a  stranger  to  the  con- 
tract. But  if  by  reason  of  the  fact  of  the  pnyment  of 
one-fifth  of  the  purchase  money  by  the  assignors  of 
plaintiffs,  the  is.9uance  of  the  certificates  and  the  entry 
thereunder,  the  assignors  of  plaintiffs  acquired  riparian 
rights,  the  defendant  is  not  a  grantee  of  the  legal  title 
of  the  waters  from  the  State.  Even  if  it  should 
be  conceded  that,  in  a  suit  for  specific  performance,  b}'  a 
vendee  against  the  grantee  of  his  vendor's  title,  the  ven- 
dor's receipt  for  part  of  the  purchase  money  from  his  ven- 
dee, would  not  be  evidence  against  the  grantee,  the  analogy 
is  not  perfect. 

Here  there  is  no  specitic  grant  to  the  defendant  to  divert 
the  water.  It  claims  to  have  acquired  the  right  to  take  it 
by  taking  it.  The  laws  of  tlie  State  are  to  be  read  together. 
Statutes  provide  for  the  sale  of  the  lands  and  the  mode  by 
which  the  title  can  be  acquired  by  individuals.  They  are 
to  pay  20  per  cent,  of  the  puri  hase  price,  and  then  a  cer- 
tificate issues;  on  the  paj'meut  of  the  balance,  within  a  cer- 
tain rime,  the  purchaser  receives  a  patent.     As  against  the 


133 

State'  the  certificate  is  evidencp  of  tLe  receipt  of  certain 
moneys;  it  is  also  evidence  of  the  right  of  possession.  The 
State  has  done  no  act  indicating  a  purpose  to  transfer  to 
another  its  right  to  the  balance  of  the  purchase  money,  or 
its  duty,  upon  the  receipt  thereof,  to  convey  *  the 
legal  title.  If  a  certificate  is  obtained  without  the 
previous  payment  of  the  20  per  cent,  it  is  for 
the  State,  by  proper  proceeding,  to  annul  the  cer- 
tificate. While  the  contract  of  purchase  is  recognized 
by  the  State  authorities  as  alive,  the  water  of  a  stream  flow- 
ing through  the  land  cannot  be  diverted  by  a  mere  appro- 
priator,  because  it  is  the  intent  of  the  statutes  that  the 
water  shall  not  be  so  appropriated.  The  rights  of  appro- 
priators  are  all  subject  and  subordinate  to  those  of  persons 
with  whom  the  oificers  of  the  State  m  ly  have  previously 
dealt  as  purchasers  of  lauds,  and  recognized  as  such  by  de- 
livery of  certificates  of  purchase.  All  lands  thus  contracted 
for  are  reserved  from  the  effect  and  operation  of  any  appro- 
priation of  water  until  failure  of  the  purchaser  to  complete 
his  payments,  the  completion  whereof  can  be  proved  by 
patent  issued  within  the  time  limited  by  law.  It  remains 
with  the  State  to  determine  whether  the  purchaser  of  the 
land  has  complied  with  his  contract,  and  whatever  is  rec- 
ognized as  sufficient  evidence  of  such  compli  ince  by  the  State, 
is  sufficient  evidence  against  one  attempting  to  appropriate 
water  after  the  purchaser  of  the  land  has  been  let  into  pos- 
session, as  shown  by  a  certificate  of  purchase. 

In  this  view  the  cases  cited  have  little  bearing  on  the 
question  we  are  considering.  This  is  not  merely  a  case  of 
two  persons  claiming  to  derive  by  patent  from  the  same 
source,  between  whom  the  prior  equity  prevails.  The  de- 
fendant had  an  absolute  right  to  divert  the  water  when  it 
appropriated  the  flow,  or  it  had  no  right.  The  plaintiffs 
would  have  had  no  equity  after  paying  for  the  land  in  full 
(had  patents  been  refused)  on  which  they  could  follow  the 
legal  title  to  the  flow  of  the  waters  into  the  hands  of  the  de- 
fendant, and  have  a  trust  decreed.  They  Avould  have  no 
right,  legal  or  equitable,  arising  out  of  their  ownership  of 
the  lands  to  divert  the  waters,  outside  of  their  own  lauds,  or 
to  demand  from  another  a  conveyance  of  such  right.  The 
effect  of  holding  that  a  valid  diVersion  of  water  from  the 
lands  could  be  made  after  part  payment  therefor,  and  certifi- 
cate, would  be  to  deprive  them  of  the  moneys  paid,  or  of  the 
benefit  of  the  water  which  may  have  been  a  principal  induce- 
ment to  the  purchase.  r  i  i 

It  may  be  said  that  the  purchaser  knows  that  he  is  liable 


134 

to  have  the  water  diverted  by  a  subsequent  appropriator 
when  he  makes  his  payment.  But  the  matter  of  notice  can- 
not determine  tlie  right  or  be  conclusive  of  tlie  proper  inter- 
pretation of  the  statutes.  If,  construing  the  statutes  one  way, 
the  purchaser  has  notice  when  he  makes  the  first  payment 
that  the  water  may  subsequently  be  diverted,  it  is  also  true, 
construing  the  statutes  the  other  way,  the  appropriator  has 
notice  that  the  laud  has  been  contracted  and  partly  paid  for. 
In  tlie  one  case,  however,  the  purchaser  has  already  parted 
with  value;  in  the  other  the  appropri  itor  has  expended  noth- 
ing prior  to  the  purchase  and  part  payment  by  the  purchaser. 
Assuming,  as  has  been  assumed  thus  far,  that  the  statutes 
do  not  authorize  the  diversion  of  watfr  from  lands  which 
shall  have  passed  into  the  absolute  ownership* of  private  per- 
sons, it  is  equally  clear  their  purpose  is  to  protect  the  flow 
of  water  to  lands  contracted  for  and  partly  paid  for  under 
the  laws  of  the  State. 

Ill  Smith  v.  Logan,  supra  (cited  by  respondent's  counsel), 
it  seems  to  have  been  held  that  one  in  possession  of  land, 
under  an  unexecuted  contract  for  the  sale  thereof,  cannot 
assert  the  rights  of  a  riparian  proprietior  in  an  adjoining 
stream.  In  that  case  it  appeared  that  the  land  was  owned 
in  fee  by  another  private  person,  who  had  contracted  to  sell 
it  to  a  defendant  in  the  suit.  The  Supreme  Court  of  Nevada 
said:  "The  contract  is  unexecuted,  and  the  conveyance  de- 
pends on  the  performance  by  Logan  of  the  obligations  im- 
posed upon  him.  Since  he  has  not  acquired  the  fee,  it  is 
obvious  that  the  doctrine  of  riparian  proprietorship  cannot 
be  invoked  in  his  behalf."  When  water  is  diverted  from 
land,  an  injury  is  done  to  the  possession,  and  ordinarily  it  is 
sufficient  if  the  plaintifl"  shows  he  has  the  possession  as 
ngaiust  a  mere  wrong-doer.  (Gould  on  Waters,  47(i.)  But 
inasmuch  as  it  here  appears  that  the  fee  was  in  the  State 
when  the  diversion  commenced,  the  mere  possession  of 
State  lands  would  not  be  sufficient  to  establish  a  right  to 
the- water  in  plaintiflts,  as  against  one  authorized  by  the  State 
to  appropriate.  It  became  necessary,  therefore,  for  the 
plaintitis  to  establish  that  they  had  acquired  the  right  to 
the  possession  from  the  State.  Did  the  contracts  of  their 
assignors  with  the  State  and  their  entry  and  possession  .show 
this?  The  plaintiff,  in  such  cases,  is  not  bound  to  prove 
the  same  title  as  he  alleg»!S,  "for  the  disturbance  is  the  gist 
of  the  action,  and  the  title  is  onl}'  the  inducement."  (Gould 
on  Wat-'rs,  478,  and  cases  cited  in  note.)  He  need  not  prove 
the  precise  title  to  the  land  as  alleg<Hl,  but  must  prove  that 
he  is  entitled  to  the  water.     If  he  has  acquired  the  right  to 


135 

the  possession  of  the  land  from  the  State,  even  although  he 
may  hold  it  subject  to  the  right  of  the  State  to  deprive  him 
of  the  possession  if  he  shall  not  satisfy  a  deferred  payment, 
it  would  seem  that  he  is  entitled  tothe  enjoymeut  of  the 
flow  of  the  stream,  as  au  incident  to  his  possession.  One 
subsequently  diverting  water  from  the  laud  cannot  defend 
his  acts  bj  proviiig  tliat  the  plaintift'  is  not  the  owner  in  fee, 
although  entitled  to  possession  as  against  the  legal  owner 
and  third  parties.  But  if  this  were  doubtful,  when  the  legal 
title  is  in  another  private  person,  here,  as  we  have  seen,  it  is 
the  evident  intention  of  the  statutes  that  those  placed  in 
possession  of  lands  under  contracts  made  with  the  State 
shall  not  be  deprived  of  flow  of  the  water  by  mere  appro- 
priators,  while  the  right  to  the  possession  shall  continue  in 
the  purchaser  as  against  the  State. 

It  would  seem  to  have  been  held  in  McDonald  v.  Bear 
River  Co.  (13Cal.,  220),  that  a  contract  of  purchase  and 
possession  under  it  constitute  an  equitable  estate,  with  the 
present  right  to  the  enjoyment  of  all  its  incidents.  There 
the  whole  purchase  price  had  been  paid. 

Of  the  other  Nevada  cases  cited  by  counsel  for  respond- 
ent, Covington  v.  Becker,  Ijolds  tliat,  upon  public  lauds  of 
the  United  States  the  prior  appropriator  of  water  has  the 
better  right  as  against  a  subsequent  appropriator  of  the 
same  stream. 

In  Lake  v.  ToUes  the  plaintiff  Vv'as  a  riparian  proprietor, 
holding  uuder  a  United  States  patent.  The  defendant  had 
a  bare  possession  of  uusurveyed  public  Lmds  higher  up  on 
the  stream.  It  was  decided  that  the  defendant  had  no  ripa- 
rian rights  and  could  not  dispute  the  plaintiff's  right  to  the 
Avater.  In  the  Arkansas  case,  that  a  mere  certificate  of  the 
Swamp  Land  Commissioners  of '^that  State  that  the  appli- 
cant "  has  this  day  applied  to  purchase  "  a  designated  tract, 
imported  in  itself  no  contract.  31egerle  v.  Ashe,  that,  as 
against  a  prior  patent^  from  theJState  of  lands  as  school 
lands  (500,000-acre  grant)  a  subsequent  patentee  from  the 
State  may  introduce  evidence  that  he  had  acquired  a  prior 
pre-emption  right;  but,  to  overcome  the  State  patent,  must 
prove  that  he  filed  his  declaration  after  the  plat  of  the  sur- 
vey had  been  filed  in  the  office  of  the  United  States  Regis- 
ter. In  Smithy.  Jthrn  the  established  rule  is  repeated: 
"  At  common  law,  and  under  our  mode  of  procedure,  in 
case  of  conflicting  patentsj^to  laud  from  one  paramount 
source,  the  Court,  in  actions  of  ejectment,  will  look  behind 
the  patents  and  ascertain  which  party  had  the  prior  equity; 
and  when  ascertained  it  will  attach  itself  to    the  legal    title, 


136 

which  by  relation  takes  eii'eut  at  the  time  the  equity  ac- 
crued; and  thus  a  junior  patent,  founded  on  a  prior  equity, 
will  prevail  over  an  elder  patent  founded  on  a  junior 
equity."  L'lrtsJale  v.  Daniels,  asserts  the  principles  laid 
down  in  Smilh  v.  Athtrn,  that  the  prior  equity  must  prevail, 
and  applies  it  in  a  case  where  in  an  action  to  rt cover  the 
possession  of  lands  the  defendant  filed  a  cros--com plaint  al- 
leging prior  equities.  Upon  the  facts  of  that  case,  how- 
ever, it  was  held  that  the  plaintili"  had  both  the  prior  pat- 
ent and  the  prior  equity.  Daniels  V.  Lans  laXt  meiely  ad- 
judges that  the  filing  of  a  j)re-emption  declaration  before 
the  Surveyor  General  has  filed  his  plat  of  survey  is  prema- 
ture and  a  nullit}'.  Osgo.dw.  JValti'  Company  presented  a 
question  of  priority  between  an  appropriator  of  water  on 
lands  of  the  United  States  and  a  pre-emptioner.  It  was 
there  held  that,  by  reason  of  the  express  language  of  the 
17th  Section  of  the  Act  of  Congress  of  July  9,  1870, 
amending  the  Act  of  July  26,  I8fi6,  the  rights  of  the  pre- 
emption claimant,  as  against  an  appropriator,  date  only 
from  his  patent  or  certificate  of  purchase. 

It  is  not  necessary  here  to  inquire  whether  the  section  of 
the  Amendatory  Act  of  1870,  referred  to  in  Osgood  v.  Water 
Compavy,  should  be  read  distributively,  so  as  to  mean  that 
all  patents  thereafter  issued  or  pre-emptions  thereafter 
"  allowed"  (or  proved  up  and  paid  for),  should  be  subject  to 
Avater  rights  previously  acquired  under  or  recognized  by  the 
Act  of  1866.  The  right  of  appropriation,  which  is  the  basis 
of  defendant's  claim,  so  far  as  it  may  affect  laud  of  the 
State  or  its  grantees,  is  to  be  derived  from  some  law  of  the 
State.  Osgood  v.  Water  Compant/  construes  statutes  of  the 
United  States.  And  no  one  of  the  decisions  cited  by  coun- 
sel interprets  the  statutes  of  the  State  bearing  upon  the 
question  of  water  rights,  or  determines  the  relative  rights 
of  those  deriving  title  to  lands  from  the  State  and  appropri- 
ators  of  water. 

It  is  contended  by  defendant,  however,  that  from  the  time 
the  title  of  the  Civil  Code  relaiing  to  water  rights  went  into 
operation,  no  grantee  of  State  lands  has  any  "riparian 
rights."  That  title  Aveut  into  operation  on  the  first  day  of 
May,  1872.  (Statutes  1871-72,  p.  622.)  If  this  be  so 'the 
certificates  hereinbefore  mentioned  as  having  been  issued 
subsequently  to  that  date  were  properly  rejected. 

The  bill  of  exceptions  shows  that  plaintiffs  also  offered  in 
evidence  certificates  of  puichase  issued  prior  to  1872.  But 
if  the  proposition  of  defendant's  counsel  be  correct  the 
certificates  last  mentioned  were  not  admissible  in  reply,  be- 


137 

cause  they  would  have  tended  to  make  out  an  entireh'  new 
case.  The  plaiutifts  were  oblio;ed  to  prove  iu  the  first  iu- 
stauce,  that  they  were  entitled  to  the  relief  prayed  for;  that 
they  were  the  owners  or  entitled  to  the  exclnsive  possession 
by  right  derived  from  the  State  of  the  lands  through  which 
the  stream  flowed,  and  that  defendant  had  diverted  water 
from  theii'  lauds.  If,  by  their  evidence  in  chief,  they  en- 
tirely failed  to  prove  that  they  Avere  entitled  to  have  the 
water  flow  to  their  lands — and  they  did  so  entirely  fail  in  their 
patents,  issued  after  the  provisions  of  the  Code  took  efi'ect, 
gave  them  no  right  to  the  water — they  could  assert  no  claim 
to  prove  facts  on  which  their  whole  case  depended,  after  the 
defendant  had  rested. 

It  was  necessary  to  inquire,  therefore,  whether  the  pro- 
visions of  the  Civil  Code  from  the  time  they  took  efl:ect  (May 
1,  1872)  operated  to  deprive  subsequent  grantees  of  State 
lands,  intersected  or  bordering  on  streams,  of  all  the  rights 
known  as  riparian  rights.  Such  is  the  contention  of  de- 
fendant; and  it  includes  the  proposition  that  Section  1422 
of  the  Civil  Code  only  protects  riparian  rights  already  ac- 
quired when  the  title  of  the  Code  went  into  operation.  For 
convenience  we  have  treated  the  question  presented  in  an 
earlier  place  in  this  opinion.  We  have  there  endeavored  to 
show  that  Section  1422  of  the  Civil  Code  saves  riparian 
rights  to  those  receiving  grants  of  State  lands  subsequent 
to  the  enactment  of  that  section.  (Ante.,  Title  XI.)  Assum- 
ing this,  the  Court  below  erred  in  excluding  the  certificates 
of  purchase. 

For  errors  mentioned  in  the  foregoing  titles,  Nos.  XVI 
and  XVII,  a  new  trial  should  have  been  granted  by  the 
Conrt  below. 

Judgment  and  order  reversed,  and  cause  remanded  for  a 

new  trial. 

McKINSTEY,  J. 

We  concur: 

McKEE,  J. 
SHARPSTEIN,  J. 
THOENTON,  J. 


DISSENTING   OPINIONS. 

I  dissent  for  the  reasons  given  in  my  dissenting  opinion 

filed  when  the  case  was  last 'under  consideration.     (4  West 

Coast  Rep.,  267.) 

^  EOSS,  J. 

I  dissent  for  the  same  reasons. 

MOEEISON,  C.  J. 


138 

I  dissent  from  tlie  judgment  and  from  the  views  of  the 
majority  of  my  associates,  as  to  riparian  rights,  for  two 
reasons : 

First — I  do  not  think  that  the  adoption  of  the  common 
h\w  of  EugLmd,  by  the  Act  of  the  Legishiture  of  this  State 
of  April  13,  1850,  was  intended  to  or  did  establish  a  rule  of 
decision  as  to  the  right  of  appropriation  of  water  for  irri- 
gation. The  land  of  the  birth  of  the  common  law  of  England 
had  no  occasion  to  consider  or  act  upon  the  necessity  for  ir- 
rigation, and  appropriation  was  not  within  tlie  scheme  of 
its  laws.  The  rights  of  riparian  owners  (whatever  they 
were)  had  reference  to  the  country  and  its  need;5,  of  which 
irrigation  was  not  an  essential  part. 

The  point  decided  in  St.  Helena  Water  Company  v.  Forbes, 
62  Cal.,  182,  had  reference  to  the  right  of  condemnation; 
no  question  as  between  riparian  rights  and  the  right  of  ap- 
propriation Avas  considered  or  involved. 

Second — The  plaiutifis  in  this  case  are  not  in  position  to 
claim  an  absolute  right  to  the  flow  of  water  over  or  through 
their  lands. 

The  "Arkansas  Act,"  so  called,  was  applied  to  this  State 
by  the  Act  of  Congress  of  September  28,  1850.  That  Act, 
in  substance,  is  as  follows:  To  enable  the  State  of  Cali- 
fornia to  construct  the  necessary  levees  and  drains  to  re- 
claim the  swamp  and  overflowed  lands  therein;  the  whole 
of  those  swamp  and  overflowed  lands  made  unfit  thereby 
for  cultivation  were  granted  to  the  Slate;  the  lands  were  to 
be  listed,  and,  on  the  issuance  of  a  patent,  the  fee  simple  to 
said  lands  should  vest  in  the  State,  subject  to  the  disposal 
of  the  Legislature;  fvoviihit,  the  proceeds  of  said  hinds 
should  be  applied  exclusively,  so  far  as  necessary,  to  the 
purpose  of  reclaiming  said  lauds  by  means  of  levees  and 
drains. 

The  only  title  of  plaintiffs  to  the  lands  in  question  was 
acquired  under  the  "Arkansas  Act"  and  the  Acts  of  the 
Legislature  of  this  State  passed  in  pursuance  thereof. 
Therefore  they  cannot  deny  that  the  lands  were  either  swamp 
lands  or  overflowed  lands,  and  were  therefore  unfit  for  cul- 
tivation; neither  can  they  deny  the  right  of  the  Legislature 
as  owner  or  as  the  law-making  power,  to  adopt  such  means 
by  levees  or  by  drains,  as  might  to  it  seem  necessary  or  fit- 
ting to  reclaim  the  lands.  The  lands  were  either  swamp 
lands  [spongy  land;  low  ground  filled  with  water;  soft,  wet 
ground;  marshy  ground  away  from  the  sea-shore;  AVeb. 
Die],  or  they  were  overflowed  lands — lands  covered  with 
water.     The  lands  were  granted  to  the  State  because  they 


139 

were,  in  a  condition  of  nature,  unfit  for  cultivation  and  for 
the  purpose  of  having  them  reclaimed.  The  State  became 
proprietor  with  the  obligation  on  its  part  to  adopt  the  nec- 
essary means  to  that  end.  This  could  be  done  either  by 
levees  or  drains — in  any  way  to  keep  off  or  draw  off  the  wa- 
ter. After  the  grant  of  Congress,  and  before  the  title  of 
plaintiffs  accrued,  Avhile  the  State  owned  the  lands,  the  State, 
as  proprietor  initiated  a  system  of  appropriation  of  water. 
The  natural  result  of  that  system,  applied  to  the  waters  of 
Kern  river,  would  be  to  reduce  the  body  of  water  flowing  to 
the  lands  of  plaintiffs,  thus  measurably  accomi)lishing  the 
object  of  the  grant.  It  will  not  do  to  say  that  the  plaintiffs 
acquired  a  right  to  the  lands  before  the  appropriation  by  de- 
fendant, and  that  by  such  acquisition  the  Stite  lost  control 
as  "proprietor,"  because  by  the  terms  of  the  grant  the  lands 
were  to  be  reclaimed;  the  plaintiffs  could  obtain  no  right  or 
title  to  the  lauds  without  such  right  or  title  being  subject  to 
the  power  of  the  State  to  direct  the  method  of  reclamation. 

The  proposition  that  lands  which,  in  a  state  of  nature, 
were  soft,  spongy,  overflowed,  and,  in  consequence  thereof, 
were  unfit  for  cultivation,  and  were  granted  for  the  juirpose 
of  having  water  kept  off  or  drawn  off,  have  attached  to 
them  the  right  to  have  all  water  flow  to  them  which,  in  the 
course  of  nature,  would  flow,  is,  in  my  opinion,  with,  I 
hope,  proper  respect  for  the  views  of  those  entertaining  con- 
trary opinions,  not  so  clearly  established  as  it  ought  to  be 
in  order  to  entitle  plaintiffs  to  recover. 

I  agree  with  my  associates  that  tiie  Court  below  erred  in 
its  ruling  as  to  the  evidence  offered  by  plaintiffs  in  rebuttal; 
but,  if  I  am  correct  in  the  views  above  expressed,  the  error 
was  immaterial. 

MYRICK,  J. 


RECEIVED 

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